INTERNATIONAL COURT OF JUSTICE
________________________________________________________
LEGAL CONSEQUENCES ARISING FROM THE POLICIES
AND PRACTICES OF ISRAEL IN THE
OCCUPIED PALESTINIAN TERRITORY,
INCLUDING EAST JERUSALEM
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT OF THE STATE OF QATAR
VOLUME I
25 JULY 2023
i
Table of Contents
Chapter 1 Introduction .............................................................................. 1
Chapter 2 The Conduct of Israel’s Settler-Colonial Occupation of
Palestinian Territory............................................................... 13
I. The Establishment and Facilitation of Settlements in
the West Bank (Including East Jerusalem) ................ 16
II. The Exclusion and Displacement of Palestinians
from the OPT ............................................................. 30
A. The Exclusion of Palestinians from the OPT ....... 30
B. Restrictions on the Right to Reside in the OPT of
Palestinians Present in the OPT ........................... 34
C. Construction of the Development of Palestinian
Communities and The Destruction of, and Eviction
from, Those Communities ................................... 40
III. Fragmentation of, and Restrictions on Movement
Within, the OPT ......................................................... 51
A. The Fragmentation of, and Restrictions on
Movement in, the West Bank (Including East
Jerusalem) ............................................................ 54
B. Israel’s Ongoing Blockade of Gaza ..................... 62
IV. Systematic Violence in the OPT and Excessive Use of
Force by Israel Against Palestinians .......................... 74
A. Israel’s Systematic and Disproportionate Military
Attacks on Gaza ................................................... 75
B. Israel’s Violent Enforcement of its Blockade of
Gaza ..................................................................... 92
C. Israel’s Excessive Use of Force in the West Bank
(Including East Jerusalem) ................................. 100
ii
D. Israel’s Condoning of, and Failure to Prevent
and Punish, Settler Violence .............................. 124
V. Discriminatory Application of Military Criminal Law
in the West Bank ...................................................... 128
A. The Discriminatory Military Criminal Legal
System ................................................................ 130
B. Administrative Detention ................................... 137
C. Restrictions on Civil and Political Rights .......... 142
VI. Oppression of Cultural and Religious Expression and
Identity ..................................................................... 143
A. Destruction and Reinvention of
Cultural Heritage ................................................ 144
B. Restrictions on Access to Religious Sites and
Ability to Worship ............................................. 150
C. Restricting and Censuring Expressions of
Palestinian Cultural Identity .............................. 153
D. Toleration of Hate Speech ................................. 155
VII. Restrictions on the Development of the Palestinian
Economy and Exploitation of the OPT’s Natural
Resources ................................................................. 156
VIII. Suppression of Journalists, Civil Society, and
NGOs Opposing the Occupation ............................. 165
A. The Systematic Targeting and
Obstruction of Journalists .................................. 165
B. Repression of Civil Society and
Political Dissent ................................................. 174
iii
Chapter 3 The Conduct of Israel’s Settler-Colonial Occupation of
Palestinian Territory Violates Its Obligations under the UN
Charter, International Human Rights Law, International
Humanitarian Law and the prohibition of crimes against
humanity .............................................................................. 181
I. Israel Has Illegally Annexed East Jerusalem and
Area C of the West Bank ......................................... 181
A. Israel’s De Jure Annexation of East Jerusalem
Violates International Law ................................. 183
B. Israel’s De Facto Annexation of Area C of the
West Bank Violates International Law .............. 185
II. The Conduct of the Occupation Violates
International Human Rights Law ............................. 191
A. Israel Violates the Rights to Life and
Security of Person .............................................. 193
B. Israel Violates the Rights to Liberty of Person and
to Be Free from Torture ..................................... 197
C. Israel Violates the Right to Liberty of Movement
and Freedom to Choose One’s Own Residence . 201
D. Israel Violates the Right to Freedom of Opinion
and Expression and the Right of Peaceful
Assembly............................................................ 206
E. Israel Violates the Rights to Family Unification
and to a Family Life ........................................... 210
F. Israel Violates the Right to Worship .................. 212
G. Israel Violates the Right to Education ............... 214
H. Israel Violates Cultural Rights ........................... 216
I. Israel Violates the Right to an Adequate Standard
of Living and the Right to Health ...................... 218
J. Israel Violates the Right to Work ...................... 230
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K. Israel Violates the Rights to Equality Before the
Law and to a Fair Trial...................................... 232
L. Israel Violates Its Obligation to Ensure Effective
Remedies ............................................................ 234
III. The Conduct of the Occupation Violates International
Humanitarian Law ................................................... 236
A. The Conduct of the Occupation in the West Bank
(Including East Jerusalem) Violates International
Humanitarian Law ............................................. 238
B. The Conduct of the Occupation in Gaza Violates
International Humanitarian Law ........................ 246
C. Israel’s Measures Concerning the Natural
Resources and Economy of the Occupied
Palestinian Territory Violate Its Obligations as an
Occupying Power ............................................... 251
IV. The Conduct of the Occupation Entails
Crimes against Humanity ......................................... 254
A. Murder................................................................ 257
B. Deportation and Forcible Transfer ..................... 259
C. Arbitrary Detention ............................................ 260
D. Enforced Disappearance .................................... 261
E. Other Inhumane Acts ......................................... 262
F. Persecution ......................................................... 263
Chapter 4 Israel’s Prolonged Settler-Colonial Occupation of Palestinian
Territory Violates International Law ................................... 267
I. Israel’s Prolonged Occupation Is Illegal as a Whole
Because It Indefinitely Violates the Right of the
Palestinian People to Self-Determination ................ 268
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A. The Palestinian People Are Entitled to Exercise
Their Right to Self-Determination on the Occupied
Palestinian Territory as a Whole ........................ 272
B. Israel’s Occupation Indefinitely Deprives the
Palestinian People of a Permanent Population ... 275
C. Israel’s Occupation Indefinitely Deprives the
Palestinian People of a Territory on which to
Realize Their Right to Self-Determination ........ 280
D. Israel’s Occupation Indefinitely Deprives the
Palestinian People of the Ability to Exercise
Their Collective Will and Determine
Their Internal Political Status ............................ 283
E. Israel’s Occupation Indefinitely Deprives the
Palestinian People of Their Right to Pursue
Freely Their Economic, Social and
Cultural Development ........................................ 285
II. Israel’s Occupation of the OPT Constitutes a Regime
of Apartheid and Is Therefore Illegal as a Whole ... 289
A. Apartheid Is Prohibited Under
International Law ............................................... 289
B. Israel’s Occupation Constitutes a
Regime of Apartheid .......................................... 303
C. As a Regime of Apartheid, the Occupation Is
Illegal and Its Continued Existence Entails a
Serious Breach of a Peremptory Norm .............. 321
Chapter 5 The Legal Consequences Arising from Israel’s Illegal
Occupation of, and Discriminatory Policies and Practices in,
the Occupied Palestinian territory ........................................ 325
I. Legal Consequences for Israel ................................. 327
A. Israel Is Under an Obligation to Cease Its
Occupation and Discriminatory Policies and
Practices ............................................................. 327
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B. Israel Is Under an Obligation to Offer
Appropriate Assurances and Guarantees
of Non-Repetition .............................................. 329
C. Israel Is Under an Obligation to Make Full
Reparation for the Injury Caused by Its Occupation
and Discriminatory Policies and Practices ........ 331
II. Legal Consequences for All Other States ................ 339
A. All States Must Not Recognize As Lawful the
Situation Created by Israel’s Occupation and
Related Conduct ................................................. 339
B. All States Must Not Aid or Assist in Maintaining
the Situation Created by Israel’s Occupation and
Related Conduct ................................................. 341
C. All States Must Cooperate to Bring to an End
Israel’s Occupation and Related Conduct .......... 345
D. All States Must Help Protect the Palestinian People
from War Crimes, Ethnic Cleansing, and Crimes
Against Humanity .............................................. 349
E. All States Must Ensure Accountability
Under International Law for International
Crimes Committed in the Context of Israel’s
Occupation ......................................................... 352
III. Legal Consequences for the United Nations ............ 360
A. The United Nations Must Not Recognize as
Lawful the Situation Created by Israel’s
Occupation and Related Conduct....................... 361
B. The United Nations Must Not Aid or Assist in
Maintaining the Situation Created by Israel’s
Occupation and Related Conduct....................... 361
C. The United Nations Must Cooperate to Bring to an
End Israel’s Occupation and Related Conduct .. 362
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Chapter 6 Jurisdiction and Discretion .................................................. 369
Chapter 7 Conclusions .......................................................................... 375
1
CHAPTER 1
INTRODUCTION
1.1. Pursuant to the Order of the Court dated 3 February 2023, the State of Qatar
(“Qatar”) hereby submits this written statement on the questions presented in the
United Nations General Assembly’s request for an advisory opinion concerning the
Legal Consequences Arising from the Policies and Practices of Israel in the
Occupied Palestinian Territory, including East Jerusalem (the “Request”).
***
1.2. A century after the establishment of the League of Nations Mandate for
Palestine in 1922, and more than a half century after the State of Israel (“Israel”)
occupied the West Bank, including East Jerusalem, and Gaza in 1967, the
international community has made clear that it refuses to accept a continuation of
the status quo. That status quo is one in which a single State, Israel, persistently
and systematically refuses to comply with the most basic principles of international
law and unequivocal demands by competent international bodies calling upon it to
cease its wrongful conduct. As a result of Israel’s intransigence, one people, the
Palestinian people,1 is forced to endure unspeakable suffering and affronts to
human dignity on a daily basis, with no end in sight. At a time when States are
coming to terms with their colonial pasts, an anachronistic settler-colonial regime
continues to expand and entrench itself now well into the 21st Century.
1 In the context of addressing the questions before the Court, Qatar refers in its submission to the
Palestinian people, Palestinian Authority, and the Occupied Palestinian Territory. This is without
prejudice to the fact that the State of Palestine is a Non-Member Observer State of the United
Nations, a Member State of numerous international organizations, and fully entitled to appear as a
State in proceedings before the Court.
2
1.3. This, of course, is not the first time the international community has come
to the Court to answer questions of international law in the context of Israel’s
occupation of Palestine. By the time the Court renders its opinion in these
proceedings, two decades will have passed since it delivered its Advisory Opinion
on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (“Wall Advisory Opinion”). Faced with a question
concerning the legality of Israel’s construction of a so-called security barrier (the
“Wall”) in the Occupied Palestinian Territory (“OPT”),2 the Court unequivocally
held that “[t]he 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 régime, are contrary to international law”.3
1.4. In reaching that conclusion, the Court found that the Wall and its associated
régime breached numerous norms of international humanitarian law (“IHL”) and
international human rights law (“IHRL”), and that the resulting situation “severely
impedes the exercise by the Palestinian people of its right to self-determination”.4
After concluding that Israeli settlements in the OPT violated international law, the
Court expressed the concern that “the construction of the wall and its associated
régime create a ‘fait accompli’ on the ground that could well become permanent,
in which case, and notwithstanding the formal characterization of the wall by Israel,
2 The OPT includes the West Bank, including East Jerusalem, and Gaza. Although Israel nominally
disengaged from Gaza in 2005, it maintains the near-total military blockade over the territory
discussed in Chapter 2, Section III(B), infra. There is broad consensus that the control Israel
continues to exercise over Gaza by means of the blockade constitutes an occupation under
international law. See Human Rights Council, Report of the Independent International Commission
of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc.
A/HRC/50/21 (9 May 2022), para. 16. The OPT is distinct from “the territory of Israel”. Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136 (hereinafter, “Wall Advisory Opinion”), para. 67.
3Wall Advisory Opinion, para. 163(3)(a).
4 Ibid., para. 122.
3
it would be tantamount to de facto annexation”.5 As a consequence, the Court
found, inter alia, that:
Israel is under an obligation to terminate its breaches of
international law; it is under an obligation to cease forthwith the
works of construction of the wall being built in the Occupied
Palestinian Territory, including in and around East Jerusalem, to
dismantle forthwith the structure therein situated, and to repeal or
render ineffective forthwith all legislative and regulatory acts
relating thereto…6
1.5. In the nearly 20 years since, Israel has not taken any steps to cease its
violations of international law. To the contrary, it has denounced7 and openly failed
to comply with the Court’s ruling. It has likewise failed to comply with more than
99 percent of the hundreds of human rights recommendations made by competent
United Nations bodies.8 The Wall not only still stands, Israel has actually expanded
it,9 and the number of Jewish Israeli settlers in the OPT has nearly doubled from
roughly 400,000 then to at least 700,000 today.10 Israel has also: expropriated
5 Ibid., para. 121.
6 Ibid., para. 163(3)(b).
7 See Government of Israel Official Website, Press Release: PM’s Statement Regarding the Opinion
of the International Court of Justice at the Hague (11 July 2004), available at
https://tinyurl.com/bdek5f9t (“[T]he State of Israel rejects outright the International Court of Justice
at The Hague’s opinion”.).
8 See Human Rights Council, Ensuring accountability and justice for all violations of international
law in the Occupied Palestinian Territory, including East Jerusalem: comprehensive review on the
status of recommendations addressed to all parties since 2009, UN Doc. A/HRC/35/19 (12 June
2017), para. 60. As of 2017 more than 550 recommendations had been addressed to Israel, with
dozens more made in recent years.
9 See OCHA, The humanitarian impact of 20 years of the Barrier - December 2022 (30 Dec. 2022),
available at https://tinyurl.com/ysmyh52j (noting that, as of 30 December 2022, 65 percent of the
approved 713 kilometre length has been constructed, a length of approximately 463 kilometres);
Wall Advisory Opinion, para. 82 (“As at 25 January 2004, according to the Written Statement of
the Secretary-General, some 190 kilometres of construction had been complete”.)
10 Peace Now, “Settlements Watch: Population” (last accessed: 24 Apr. 2023), available at
https://tinyurl.com/y6pt6bej; Peace Now, “Settlements Watch: Jerusalem” (last accessed: 24 Apr.
2023), available at https://tinyurl.com/59x5jesd; Human Rights Council, Report of the UN High
Commissioner for Human Rights on Israeli settlements in the Occupied Palestinian Territory,
4
hundreds more hectares of Palestinian land;11 demolished approximately 10,000
Palestinian homes and other structures, displacing more than 14,500 Palestinians;12
and killed at least 7,500 Palestinians.13
1.6. Against this ever-worsening backdrop, the international community has
once again turned to the Court seeking answers to two complementary questions:
(a) What are the legal consequences arising from the ongoing
violation by Israel of the right of the Palestinian people to selfdetermination,
from its prolonged occupation, settlement and
annexation of the Palestinian territory occupied since 1967,
including measures aimed at altering the demographic composition,
character and status of the Holy City of Jerusalem, and from its
adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to in
paragraph 18 (a) above affect the legal status of the occupation, and
what are the legal consequences that arise for all States and the
United Nations from this status?
including East Jerusalem, and in the occupied Syrian Golan, UN Doc. A/HRC/52/76 (15 Mar.
2023), para. 5; UN, “Human Rights Council Hears that 700,000 Israeli Settlers are Living Illegally
in the Occupied West Bank – Meeting Summary (Excerpts),” available at
https://tinyurl.com/56nfkh7d; Human Rights Council, Report of Special Rapporteur S. M. Lynk on
the situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/HRC/49/87 (12 Aug. 2022), para 9.
11 Kerem Navot, For the Common Good: Military Expropriation Orders in the West Bank, 1967-
2022 (Dec. 2022), available at https://tinyurl.com/bdfhxx8c, p. 34.
12 The OCHA reports 9,629 demolitions Palestinian structures and the displacement of 14,051
Palestinians since 2009, with the Israeli NGO B’Tselem reporting 140 demolitions and 768
displacements between 2006 and 2008. See OCHA, “Data on Demolition and Displacement in the
West Bank” (last accessed: 12 July 2023), available at https://tinyurl.com/n9e7x7x4; B’Tselem,
House Demolitions: Demolition on the pretext of unlawful construction (last accessed: 13 July
2023), available at https://tinyurl.com/yc3tbt2f.
13 The OCHA reports 6,334 Palestinian and 409 Israeli fatalities since January 2008, with the Israeli
NGO B’Tselem reporting the deaths at the hands of Israeli forces of a further 1,232 Palestinians
and 21 Israelis between 2005 and 2007. See OCHA, “Data on casualties” (last accessed: 11 July
2023), available at https://tinyurl.com/2sdp43zu; B’Tselem, “Fatalities: All data” (last accessed: 13
July 2023), available at https://tinyurl.com/42wchrj2.
5
1.7. Question (a) concerns past and present wrongs. Qatar considers that with
its open-ended framing, this question calls upon the Court to examine the individual
components of the occupation, to assess their legality, and to set forth the legal
consequences and remedies international law requires. In answering this question,
the Court is called upon to lay to rest any lingering doubts about the illegality of
Israel’s policies and practices, to expose them for what they are, and to provide a
sense of justice to Israel’s victims.
1.8. Question (b), on the other hand, is forward-looking. Qatar understands it to
ask the Court to make a simple but historic assessment: in light of the myriad
illegalities revealed by question (a), has the occupation itself become illegal? If the
answer to that question is “yes”, the consequences are obvious: the occupation must
be brought to an end. In this sense, the Court now has before it what Judge Higgins,
in her separate opinion in the Wall Advisory Opinion, referred to as “the larger
problem”, which was then “beyond the question put to the Court for an opinion”.14
After a more than a century during which the Palestinian people have endured one
injustice after another, the “Question of Palestine” is now squarely before the
Court. As the principal judicial organ of the United Nations, Qatar respectfully
submits that the Court can and should draw a bright line underscoring the illegality
of Israel’s occupation as a whole.
1.9. The intervention of the Court is needed now more than ever; the situation
on the ground in the OPT continues to deteriorate at an alarming pace. In the first
half of 2023 alone, Israel has approved new settlements in unprecedented numbers;
killed more Palestinians in the West Bank than any time since 2004;
indiscriminately bombed Gaza and the West Bank; beaten worshipers in the holiest
14 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Separate
Opinion of Judge Higgins (9 July 2004), para. 30.
6
sites of Islam and Christianity; and tolerated (and even celebrated) mass violence
by Jewish Israeli settlers against Palestinian civilians.
1.10. This has occurred alongside its ever-tightening control of all aspects of
Palestinians’ lives. For 16 years, the approximately two million Palestinians of
Gaza have endured what the United Nations Special Rapporteur on the situation of
Human Rights in the Palestinian territories occupied since 1967 (“OPT Special
Rapporteur”) has called a “medieval military blockade”.15 Children born since
have known nothing but imprisonment, poverty and hunger. They have also lived
through as many as half a dozen large-scale Israeli armed attacks just in their
lifetimes, while the fear of Israeli drones and warplanes overhead is ever present.
In the West Bank, Palestinians face daily humiliation at checkpoints, cannot access
their homes and land, are excluded from Jewish-only highways and streets, are
arbitrarily and indefinitely detained, and are routinely subjected to indiscriminate
and excessive violence. In East Jerusalem, Palestinians are displaced and evicted
from their homes, and their culture and religions are systematically oppressed, as
Israel continues its efforts to strip the Holy City of its multicultural and multireligious
history and character.
1.11. Seeking “maximum Jews on maximum land with maximum security and
with minimum Palestinians”,16 Israel treats much of the West Bank, including East
Jerusalem, as its own territory. It has declared the promotion of Jewish settlement
a national value and provides full citizenship rights and generous benefits to Jewish
Israelis there. At the same time, Israel maintains overtly discriminatory laws and
15 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
35.
16 G. S. Hoffmann, “Lapid: US helped Iran fund its next war against Israel,” Jerusalem Post (26
Jan. 2016), available at https://tinyurl.com/3yp3kyk9.
7
policies, which exclude the rights of Palestinians to self-determination and equality
before the law. Palestinians are relegated to tiny enclaves; the Israeli military rules
over them as disenfranchised and second-class subjects.
1.12. Reporting on their June 2023 visit to the OPT on behalf of the Elders,
former UN Secretary-General Ban Ki-Moon and former High Commissioner for
Human Rights Mary Robinson
[W]arned that a ‘one-state reality’ is now rapidly extinguishing the
prospect of a two-state solution foreseen in the 1993 Oslo Accords
to bring peace and security to both the Israeli and the Palestinian
peoples.
The Government of Israel’s intent to exercise sovereignty over all
the territory between the Jordan River and the Mediterranean Sea
undermines the democratic ideals of the Israeli state, denies the
Palestinian people their right to self-determination, and risks an
uncontrollable explosion of violence on both sides.
1.13. The former Secretary-General and High Commissioner went further,
stating that there is
[E]ver-growing evidence that the situation meets the international
legal definition of apartheid: the expansion and entrenchment of
illegal Jewish settlements in the West Bank and East Jerusalem, the
establishment of dual legal regimes and separation infrastructure in
the occupied territories, and the institutionalised discrimination and
abuses perpetrated against Palestinians … [T]he declarations and
policies of the current Israeli Government – whose Coalition
Guidelines state that “the Jewish people have an exclusive and
inalienable right to all parts of the Land of Israel” – clearly show an
intent to pursue permanent annexation rather than temporary
occupation, based on Jewish supremacy.17
17 The Elders, Elders warn of consequences of ‘one-state reality’ in Israel and Palestine (22 June
2023) (hereinafter, “The Elders 2023 Report”), available at https://tinyurl.com/595fh8a2, p. 1.
8
1.14. Their conclusions echo the findings of numerous UN special rapporteurs,
commissions of inquiry and fact-finding missions, as well as the most reputable
international, Israeli and Palestinian human rights organizations. The reality of the
occupation can no longer be hidden. It is not a temporary military measure resulting
from an international armed conflict, if it ever were. It the culmination of a centurylong
settler-colonial project that presents an insurmountable obstacle to the selfdetermination
of the Palestinian people and has become a regime of apartheid.
1.15. Qatar recognizes the ambitious scope of the Request. It calls on the Court
to grapple with what is arguably the longest-standing unresolved legal problem
facing the international community. To provide the necessary context for the
Court’s task, Qatar submits herewith two independent expert historical reports. The
reports have been prepared by the two most preeminent historians of the Israeli-
Palestinian conflict alive today: Professors Rashid Khalidi of Columbia University
and Avi Shlaim of Oxford University.18 Between them, they have a century of
experience in the field. From their respective perspectives as a Palestinian and an
Israeli, they provide an overview of the history of Palestine and the Israeli-
Palestinian conflict since the beginning of the 20th century.
1.16. In his report, Professor Khalidi discusses the origins of Zionism—i.e., the
movement calling for the establishment of a Jewish national polity in Palestine. As
he explains, from its very outset, Zionism openly advanced a settler-colonial
project. Born during the height of the colonial era in the late 19th century, early
Zionists explicitly sought to displace and replace a predominantly Arab and multireligious
Palestinian indigenous population with European Jewish settlers. Backed
by the British Mandate over Palestine, the Jewish population increased from just
18 Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023). Qatar Written
Statement (“QWS”), Vol. II, Annex 1; Prof. Avi Shlaim, The Diplomacy of the Israeli-Palestinian
Conflict (1967-2023) (20 July 2023). QWS, Vol. II, Annex 2.
9
5-7 percent of the total in the years before World War I to 31 percent in 1939. After
the British relinquished the Mandate, a 1947 UN Partition Plan called for giving a
new State of Israel 56 percent of the territory of mandatory Palestine despite the
fact that the Jewish population then constituted just one-third of the total. During
the 1947-49 war by means of which Israel created itself, it captured fully 78 percent
of the mandate territory. The war also led to the displacement of 750,000
Palestinians, the majority of the population, from their homes never to return. The
Palestinians refer to these events as the “Nakba” or catastrophe.
1.17. Israel then continued the same settler-colonial project within the territories
bounded by the 1949 armistice lines and, since 1967, in the OPT. All along, the
international community—as reflected in the discriminatory terms of the 1922
Mandate, the 1947 UN Partition Plan, and even early General Assembly and
Security Council resolutions—largely ignored the Palestinian people and their
inherent right to self-determination.
1.18. For his part, Professor Shlaim explains that the events since 1967 reveal
that Israel has seldom been, and has not been for decades, genuinely interested in
a negotiated solution of the conflict and an end to the occupation. Rather, Israel has
adopted what has been called “a diplomacy of deception”.19 While publicly
proclaiming that it wants peace, it has taken concrete measures to render the
occupation permanent. First and foremost among these are Jewish settlements. In
other words, Israel uses the “peace process” to distract attention from its settlercolonial
project in the OPT. Although Israel has reached individual peace
agreements with some of its neighbours, including Egypt and Jordan, none address
the problem of Palestine. And even the one glimmer of hope—the Oslo Accords—
19 Prof. Avi Shlaim, The Diplomacy of the Israeli-Palestinian Conflict (1967-2023) (20 July 2023),
p. 5. QWS, Vol. II, Annex 2.
10
was only possible because of very significant concessions by the Palestinians. But
even then, Israel turned its back on Oslo. All international initiatives to obtain a
negotiated end to the occupation have therefore failed and led instead to the further
entrenchment of Israel’s fait accompli in the OPT.
1.19. After a century of injustice, the time has come for a just and legal solution
to the question of Palestine. That solution is not only long overdue, it is increasingly
pressing in light of the facts on the ground today. All alternatives have been
exhausted and the Court may now well be the last hope for future generations of
Palestinians and Israelis alike. At the same time, the Court’s answers to the
questions the Request poses will also serve, in the recent words of the Elders, as “a
litmus test for the credibility of an international system which should hold to
account all those who break international law”.20
***
1.20. Qatar’s submission is organized as follows.
1.21. Chapter 2 provides a detailed overview of the discriminatory and
oppressive policies and practices Israel deploys in maintaining the occupation, all
of which serve its acquisitive settler colonial project in the OPT.
1.22. Chapter 3 demonstrates that Israel has in the conduct of its occupation
unlawfully annexed the West Bank and East Jerusalem, violated core norms of
international humanitarian law, breached a wide range of human rights obligations,
and committed crimes against humanity.
20 The Elders 2023 Report, p. 2.
11
1.23. Chapter 4 establishes that the occupation as a whole is itself illegal because
it constitutes an insurmountable and permanent obstacle to the Palestinian people’s
inherent right to self-determination and is a regime of apartheid.
1.24. Chapter 5 sets forth the legal consequences arising from Israel’s ongoing
breaches of international law—including peremptory norms—for Israel itself, for
all States and for the United Nations.
1.25. Chapter 6 shows, ex abundanti cautela, that the Court has the jurisdiction
to give the requested advisory opinion and there is no reason it should decline to
do so.
1.26. Chapter 7 respectfully presents Qatar’s conclusions concerning the
Request.
13
CHAPTER 2
THE CONDUCT OF ISRAEL’S SETTLER-COLONIAL OCCUPATION
OF PALESTINIAN TERRITORY
2.1 It is not possible to recount here—let alone detail—all of the abuses and
cruelties the Palestinian people in the OPT have suffered in the course of Israel’s
occupation. As reflected by the dossier prepared by the Legal Counsel, these abuses
and cruelties are documented in hundreds of official United Nations documents
filling tens of thousands of pages. The purpose of this Chapter is twofold.
2.2 First, Qatar provides an overview of Israel’s principal policies and practices
in the OPT to show how widespread, systematic, and egregious they are. As
demonstrated below, Israel’s conduct is nothing short of shocking and the suffering
of the Palestinian people immeasurable.
2.3 Second, Qatar demonstrates that, rather than the incidental or inevitable
consequences of a military occupation or ethno-national conflict, Israel’s practices
and policies in the OPT are all designed to promote a single goal: the permanent
colonization of the OPT for the exclusive benefit of the State of Israel and Jewish
Israeli settlers. In other words, the discriminatory policies and practices of the
occupation are all inextricable features of a single settler-colonial project. As
summarized by the OPT Special Rapporteur in 2022:
Since the beginning of the occupation in June 1967, the rule of Israel
over the Palestinian territory has been epitomized by two core
features. The first is the establishment of designed-to-be irreversible
‘facts-on-the-ground’: the creation of 300 civilian settlements, with
700,000 Jewish settlers, meant to demographically engineer an
unlawful sovereignty claim through the annexation of the occupied
territory while simultaneously thwarting the Palestinians’ right to
self-determination. The second is the development of an oppressive
system of military rule over the 2.7 million Palestinians in the West
Bank, a shrunken and tenuous range of residency rights for the
14
360,000 Palestinians living in East Jerusalem, and a medieval
military blockade of the 2 million Palestinians in Gaza.
These two features are deeply intertwined: it is impossible for an
acquisitive occupying power to settle hundreds of thousands of its
citizens into occupied territory, create for them attractive living
conditions equivalent to the home territory, and expropriate and
alienate huge swaths of land and resources for their benefit and
security, without also immiserating the indigenous people and
triggering their perpetual rebellion.21
2.4 As described more fully in the sections that follow, Israel’s occupation of
the OPT is characterized by the following main policies and practices, all of which
serve to further its settler-colonial project:
• Settlement. Israel establishes Jewish Israeli settlements in the West
Bank and East Jerusalem by seizing Palestinian lands, financing and
facilitating the construction of housing and infrastructure for Jewish
Israelis, and discriminatorily incentivizing Jews from around the world
to settle there (Section I);
• Displacement. In order to make room for Jewish Israeli settlers, Israel
permanently excludes hundreds of thousands of Palestinians from the
OPT, and displaces those still present there from their homes and lands
through demolitions, evictions and building restrictions (Section II);
• Fragmentation. In order to implement the demographic and physical
control necessary to perpetuate the occupation and establish further
settlements, Israel divides and isolates Palestinians in fragmented
enclaves, restricts their movement, and renders their daily lives all but
unliveable (Section III);
• Violence. Israel and its Jewish settlers employ brutal violence against
Palestinians both to crush resistance to the occupation—including and
principally nonviolent resistance—and to perpetuate a climate of fear
21 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), paras.
35-36.
15
and repression that enables the further expansion of Jewish settlements
(Section IV);
• Discriminatory Military Justice. Israel implements a draconian and
inherently discriminatory military legal system in the West Bank, which
privileges Jewish Israeli settlers while depriving similarly situated
Palestinians of the most basic legal protections (Section V);
• Cultural Erasure. In furtherance of its mission to replace all of historic
Palestine with “the Land of Israel”, Israel seeks to erase and suppress
all manifestations of Palestinian culture and religions in the OPT,
gradually reinventing not only its physical but also its cultural landscape
(Section VI);
• Economic Oppression. As both a deliberate tactic and a consequence
of its occupation, Israel has systematically thwarted the OPT’s
economic development, impoverishing Palestinians while enriching
Jewish Israelis through the exploitation of the OPT’s natural resources
(Section VII); and
• Preventing Accountability. In an attempt to hide the harsh realities of
the occupation from the world, Israel systematically persecutes all those
who attempt to document or pursue accountability for the occupation,
including journalists and human rights organizations (Section VIII).
2.5 As summarized by the OPT Special Rapporteur
The past 70 years has taught us that a covetous alien power has two
choices: either to abandon the fever-dream of settler colonialism
and recognize the freedom of the indigenous people, or instead to
double-down with increasingly more sophisticated and harsher
methods of population control as the inevitable consequence of
entrenching permanent alien rule over a people profoundly opposed
to their disenfranchisement and destitution.22
22 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
36.
16
This Chapter will show that Israel has unmistakably chosen the latter option, with
the consequences for the Palestinian people worsening every day.
I. The Establishment and Facilitation of Settlements in the West Bank
(Including East Jerusalem)
2.6 The establishment and development of Jewish Israeli settlements began
immediately after Israel occupied the OPT in 1967. It has since been a key policy
of successive Israeli governments and is the central feature of Israel’s settlercolonial
project in the OPT.
2.7 When Israel’s policy to establish settlements in the OPT was first
formulated in 1967,23 the Legal Counsel of the Israeli Ministry of Foreign Affairs,
Theodor Meron, told his superiors that “civilian settlement in the administered
territories [i.e., the OPT] contravenes the explicit provisions of the Fourth Geneva
Convention”.24 Israel decided to go ahead anyway.
2.8 By 2004, there were approximately 400,000 Jewish Israeli settlers in East
Jerusalem and “Area C” of the West Bank.25 Under the Oslo Accords, Area C,
which covers more than 60 percent of the West Bank, is “under full Israeli control
for security, planning and construction purposes” and is predominantly comprised
of Palestinian agrarian villages and agricultural land.26 In its Wall Advisory
23 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), Annex I, p. 26.
24 Ibid. See also Prof. Avi Shlaim, The Diplomacy of the Israeli-Palestinian Conflict (1967-2023)
(20 July 2023), p. 8. QWS, Vol. II, Annex 2.
25 Peace Now, “Settlements Watch: Population” (last accessed: 24 Apr. 2023), available at
https://tinyurl.com/y6pt6bej.
26 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
17
Opinion that year, the Court expressly determined that “Israeli settlements in the
Occupied Palestinian Territory … have been established in breach of international
law”.27
2.9 Since then, the number of Jewish Israeli settlements and settlers in both
areas has increased significantly. In the past decade alone, the number of Jewish
Israeli settlers increased by 43 percent, more than 20 times the population growth
rate of Israel itself, which is at approximately 1.60 percent.28 As of 2023, there are
about 265 settlements and 500,000 settlers in Area C alone.29 Between 2004 and
2020, Israel has also permitted more than 47,000 additional Jewish settlers to move
to East Jerusalem;30 the total is now about 200,000 settlers.31 Altogether some
700,000 settlers, or approximately 11 percent of Jewish Israelis, now live in the
OPT.32
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), p. 6.
27 Wall Advisory Opinion, para. 120.
28 Human Rights Council, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9
May 2022), para. 34; World Population Review, “Israel Population (2023)” (last accessed: 15 July
2023), available at https://tinyurl.com/yc5uzbhy.
29 Human Rights Council, Report of the UN High Commissioner for Human Rights on Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, UN Doc. A/HRC/52/76 (15 Mar. 2023), para. 5; C. Parker, “Jewish settler population
in West Bank passes half a million,” Washington Post (2 Feb. 2023), available at
https://tinyurl.com/275bjwsf.
30 Peace Now, “Settlements Watch: Jerusalem” (last accessed: 24 Apr. 2023), available at
https://tinyurl.com/59x5jesd. In 2004, the number of Jewish Israeli settlers was 181,962. In 2020, it
increased to 229,377.
31 European Union, 2021 Report on Israeli settlements in the occupied West Bank, including East
Jerusalem (20 July 2022), available at https://tinyurl.com/bdewbd86.
32 Z. Tahhan, “Israel's settlements: Over 50 years of land theft explained,” Al Jazeera (21 Nov.
2017), available at https://tinyurl.com/2s435w5e.
18
2.10 Israel’s leaders, across the political spectrum, have made clear that the
maintenance and expansion of Jewish Israeli settlements is a key policy goal. By
entrenching settlements as irreversible “facts on the ground”,33 Israel effectively
stakes a permanent claim over as much land as possible and aims to permanently
change the demographics of the OPT. As Yair Lapid—the current leader of Israel’s
opposition—explained in 2016 shortly before he became Foreign Minister: “My
principle says maximum Jews on maximum land with maximum security and with
minimum Palestinians.”34 Similarly, in 2019, Israel’s current Prime Minister
Benjamin Netanyahu stated: “I will not evacuate any community [settlement] and
I will make sure we control the territory west of Jordan.”35 In the same year, Israel’s
Defence Minister Benny Gantz declared that: “We will strengthen the settlement
blocs … from which we will never retreat”.36
2.11 That the settlements are intended to Judaize the OPT is clear from, among
other things, Israel’s “Jerusalem Master Plan”, the goal of which is to “maintain[]
a Jewish demographic majority with a 60:40 ratio” in Jerusalem and surrounding
areas.37 It is also clear from Israel’s 2018 Basic Law: Israel – The Nation State of
the Jewish People. The law, which has “quasi-constitutional status”,38 expressly
provides that “[t]he State views the development of Jewish settlement as a national
33 See, e.g., Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of
human rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug.
2022), para. 47.
34 G. S. Hoffmann, “Lapid: US helped Iran fund its next war against Israel,” The Jerusalem Post
(26 Jan. 2016), available at https://tinyurl.com/54p37v2z.
35 “Netanyahu Says Will Begin Annexing West Bank if He Wins Israel Election,” Haaretz (7 Apr.
2019), available at https://tinyurl.com/yh8nanww.
36 “Benny Gantz, Netanyahu Rival, Gives Campaign Launch Speech - Full English Transcript,”
Haaretz (30 Jan. 2019), available at https://tinyurl.com/yp24z6c3.
37 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
44.
38 Ibid., para. 48.
19
value, and shall act to encourage and promote its establishment and
consolidation”.39
2.12 Israel implements its settlement policy in five principal ways.
2.13 First, Israel has seized land used and/or owned by Palestinians in East
Jerusalem and Area C and made it available to Jewish Israelis for the purposes of
building settlements and infrastructure to support them. Since 1967, Israel has
made more than two million dunams (2,000 sq. km) of land—nearly half the area
of the West Bank—available for settlements.40 It has done so, and continues to do
so, by, inter alia:
• Invoking the Absentee Property Law to seize privately-owned
Palestinian lands that the owners were forced to abandon when they fled
their homes during and in the aftermath of the 1948 and 1967 wars;41
• Declaring privately owned or unregistered Palestinian land as “State
land” based on a manipulative use of the Ottoman Land Law of 185842
(to date approximately 800,000 dunams (800 sq. km) of the West Bank
have been seized in this way43);
39 Israel, Basic Law: Israel – the Nation State of the Jewish People (2018), available at
https://tinyurl.com/5n9b4nhs, art. 7.
40 B’Tselem, This is Ours – And this, Too: Israel’s Settlement Policy in the West Bank (Mar. 2021),
available at https://tinyurl.com/yfhp5jz3, p. 6. See also Prof. Rashid Khalidi, Settler Colonialism
in Palestine (1917-1967) (20 July 2023), pp. 45-46. QWS, Vol. II, Annex 1.
41 Norwegian Refugee Council, Legal Memo, The Absentee Property Law and its Application to
East Jerusalem (Feb. 2017), available at https://tinyurl.com/2bawaau4, pp. 1-2, 5.
42 This law was absorbed in a number of Jordanian laws enacted over the years. Law No. 14 of 1961
– The Protection of State Land and Property Law, in Planning, Building and Land Laws defines
which land is State land. B’Tselem, Land Grab – Israel’s Settlement Policy in the West Bank (May
2022), available at https://tinyurl.com/crz2kxbn, pp. 52-53, note 103.
43 Kerem Navot, For the Common Good: Military Expropriation Orders in the West Bank, 1967-
2022 (Dec. 2022), available at https://tinyurl.com/bdfhxx8c, p. 29.
20
• Formally expropriating privately held or unregistered Palestinian land
for “public purposes” pursuant to a Jordanian law that continued to
apply in the OPT after 196744 (to date 313 such expropriations, covering
74,000 dunams (740 sq. km), have been carried out45);
• Working with quasi-governmental agencies to purchase privatelyowned
Palestinian land for settlements (in August 2022, for example,
the Jewish National Fund, at the urging of the Israeli Ministry of
Defence, “voted to allocate 61 million shekels [(approximately EUR
17.7 million at then-prevailing rates)] for the purchase of land owned
by Palestinians in the Jordan Valley”); 46 and
• Seizing privately-owned Palestinian land “temporarily” for military
purposes47 (over 112,000 dunams (112 sq. km) have been seized
through more than 1,300 seizure orders since 1967);48 in addition,
thousands of “temporary closure orders” are used to create “settlement
jurisdiction areas”.49
The cumulative effect of these measures on the West Bank is illustrated in Figure
2.1 following this page.
2.14 Second, on land that it acquires in East Jerusalem and Area C, Israel directly
or indirectly permits and authorizes the establishment and expansion of
44 The Land Law – Acquisition for Public Needs, Law No. 2 for 1953, amended by Israel through
Order Regarding the Lands Law (Acquisition for Public Needs) (No. 321 and No. 949). See
B’Tselem, Land Grab – Israel’s Settlement Policy in the West Bank (May 2022), available at
https://tinyurl.com/crz2kxbn, p. 60, note 146.
45 Kerem Navot, For the Common Good: Military Expropriation Orders in the West Bank, 1967-
2022 (Dec. 2022), available at https://tinyurl.com/bdfhxx8c, p. 3.
46 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 38; H. Shezaf, “JNF Approves Funds to Buy Palestinian-owned Jordan Valley Land at Israel's
Request,” Haaretz (3 Aug. 2022), available at https://tinyurl.com/8n5mwfu5.
47 Peace Now, “Methods of Confiscation – How does Israel justify and legalize confiscation of
lands?” (1 Jan. 2009), available at https://tinyurl.com/4embykwy.
48 Kerem Navot, “For the Common Good: Military Expropriation Orders in the West Bank, 1967-
2022” (June 2023), available at https://tinyurl.com/bdfhxx8c, p. 29.
49 Ibid., p. 30.
The cumulative effect of Israel’s measures regarding land in the
OPT on the West Bank
Created using the interactive tool created by B’Tselem, available at:
https://conquer-and-divide.btselem.org/map-en.html
Figure 2.1
21
settlements. Because Israel purports to have annexed East Jerusalem, it imposes no
restrictions or special procedures on Jewish Israeli settlements, which are ipso facto
authorized by law.50 In the West Bank, the relevant Israeli authorities authorize
settlements through, inter alia, adopting a government resolution, allocating land
for construction, and issuing a building permit.51 As of July 2023, there are 132
authorized settlements in Area C and 14 in East Jerusalem.52
2.15 For the period from 1 June 2021 to 31 May 2022, the UN Secretary-General
reported a sharp increase in Israel’s settlement activity, “with plans for some 9,200
housing units in the occupied West Bank (7,200 in Area C, 2,000 in East
Jerusalem), advanced or approved by the Israeli authorities, compared with 6,800
housing units in the previous reporting period”.53
2.16 In the past year, Israel’s authorization of settlements has only accelerated
further. In the first half of 2023 alone, more than double the number of settlements
were approved as compared to the 2020-2021 reporting period. In June 2023, the
New York Times reported that the Israeli government “decided to ease and expedite
the process of approving new Jewish settlements in the occupied West Bank” 54 by
removing the need for high-level political approval at various stages of the process,
50 See Israel Policy Forum, “West Bank Settlements” (last accessed: 29 June 2023), note 2, available
at https://tinyurl.com/574fyk83.
51 Office of the Prime Minister of Israel, Summary of the Opinion Concerning Unauthorized
Outposts (10 Mar. 2005), available at https://tinyurl.com/45mpp9ex.
52 Israel Policy Forum, “West Bank Settlements” (last accessed: 29 June 2023), available at
https://tinyurl.com/574fyk83; UN, “Human Rights Council hears that 700,000 Israeli settlers are
living illegally in the occupied West Bank – Meeting Summary (Excerpts), available at
https://tinyurl.com/m4bnuaa6.
53 UNGA, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and
the Occupied Syrian Golan, UN Doc. A/77/493 (3 Oct. 2022) (Dossier No. 72) (Dossier notation
refers to Materials Compiled Pursuant to art. 65, para. 2 of the Statute of the ICJ— Request for an
Advisory Opinion pursuant to General Assembly Resolution 77/247), para. 4.
54 I. Kershner, “Israel Eases West Bank Settlement Rules, Clearing Way for New Homes,” New
York Times (18 June 2023), available at https://tinyurl.com/3bxzw73j.
22
paving the way for even more rapid expansion of settlements in the West Bank.55
According to a report published by the BBC on 27 June 2023, this acceleration
means that the last six months have seen more than 13,000 settlement homes
constructed in the OPT—about three times as many as in all of 2022.56
2.17 Third, Israel has tolerated, facilitated and retroactively approved so-called
“outpost” settlements—that is, Jewish Israeli settlements that have been established
without fulfilling all formal requirements under Israeli law. The Office of the UN
High Commissioner on Human Rights (“OHCHR”) has reported that, as of 2023,
there are 147 outpost settlements in the West Bank, about half of which have been
established since 2012 alone.57
2.18 Despite officially being illegal under Israeli law, the OHCHR explains that
“outposts are often strategically placed and play a key role in the takeover of
Palestinian land”, in large part due to their large scale and Israel’s failure to stop
their expansion.58 Far from stopping their expansion, Israel “develop[ed] a
domestic legal path to enable [their] retroactive legalization”.59 Since 1993, Israel
has retroactively authorized more than 30 outposts,60 including some built on land
55 Ibid.
56 See Y. Knell, “West Bank: US 'troubled' by Israeli settlement expansion plans,” BBC (27 June
2023), available at https://tinyurl.com/3a26483c.
57 Human Rights Council, Report of the UN High Commissioner for Human Rights on Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, UN Doc. A/HRC/52/76 (15 Mar. 2023), para. 12.
58 Ibid.
59 Ibid., para. 14.
60 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 26 (the number of retroactively authorized outposts as of September 2022 was 23).
23
privately owned by Palestinians.61 In February 2023 alone, it retroactively
authorized nine outposts.62 These retroactive authorizations are facilitated by a law
that allows Israel to expropriate privately-owned Palestinian land on which
outposts have already been built.63 For example, in January 2020, the Israeli High
Court authorized the settlement of Ofra, shown below, despite acknowledging that
it had been partly built on 12 acres of “accidentally expropriated” Palestinian
land.64 Needless to say, this continuing pattern of retroactively authorizing outposts
only encourages settlers to establish still more.
61 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), para. 54.
62 U.S. Department of State, Press Statement: Israeli Settlement and Outpost Legalization
Announcement (13 Feb. 2023), available at https://tinyurl.com/54y3h2vw.
63 Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and
Persecution (2021) (hereinafter, “HRW 2021 Report”), available at https://tinyurl.com/3s2vdjw9,
p. 72.
64 J. Magid, “Court gives nod to settlement largely built on private Palestinian land,” Times of Israel
(7 Jan. 2020), available at https://tinyurl.com/2r953jwt/.
24
Figure 2.2: A view of the Israeli settlement of Ofra in the central West Bank,
with the Palestinian town of Ein Yabrud on the range behind it, 17 November
201665
2.19 Fourth, Israel supports and encourages settlements in the OPT with funding
and financial incentives. Although State investment in settlements is not an explicit
line item in the public budget, Israel has invested “billions of dollars [into] the
construction of settlements and of infrastructure to support them”.66 Quasigovernmental
entities that receive funding from Israel,67 such as the World Zionist
Organization, also provide funds to settlers and developers for the purchase of lands
65 Ibid.
66 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 25.
67 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 21.
25
owned by Palestinians in the West Bank and for the construction of housing on that
land.68
2.20 In addition, the OHCHR reports that “[f]or decades, settlers have received
economic and other incentives to relocate to the West Bank”.69 This includes a
multifaceted “governmental scheme of subsidies and incentives” to incentivize
Jewish Israeli migrants to move to the West Bank (including East Jerusalem) and
assist their economic development.70 Settlements are defined as “national priority
areas” and receive special housing and education benefits; incentives are also given
to the industrial, agricultural and tourism sectors.71 These benefits include:
• Low-interest mortgages, exemption from penalties and capitalization
fees in mortgage repayment, and development cost subsidies (granted
by the Ministry of Construction and Housing);72
• Low-cost leases of land and housing (granted by the Israel Land
Administration);73
68 UNGA, Note by the Secretary-General: Report of the Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328
(14 Sept. 2022), para. 38.
69 Human Rights Council, Report of the UN High Commissioner for Human Rights on Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, UN Doc. A/HRC/43/67 (30 Jan. 2020), para. 14.
70 UNGA, Report of the independent international fact-finding mission to investigate the
implications of the Israeli settlements on the civil, political, economic, social and cultural rights of
the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 22. See also Human Rights Council, Report of Special
Rapporteur S. M. Lynk on the situation of human rights in the Palestinian territories occupied since
1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para. 39.
71 B’Tselem, This is Ours – And This, Too: Israel’s Settlement Policy in the West Bank (Mar. 2021),
available at https://tinyurl.com/3bb8a25u, p. 12.
72 Ibid., p. 14.
73 Ibid.
26
• Incentives for teachers to move to and work in settlements in the form
of wage increases (provided by the Ministry of Education);74
• Grants for investors to invest in, and for the construction of
infrastructure servicing, industrial zones (provided by the Ministry of
Industry and Trade);75
• Financial support to new farmers and incentives for institutions
providing agricultural mentoring programs (provided by the Ministry of
Agriculture);76 and
• Reductions in income tax for individuals and companies (provided by
the Ministry of Finance).77
2.21 Fifth, Israel facilitates settlements through the construction of infrastructure
that serves the settlements and effectively integrates them into Israel’s pre-1967
borders. Some such infrastructure was constructed on privately-owned Palestinian
land that Israel expropriated.78 Israel has built roads, water and sewage systems,
telecommunications and electrical systems, and educational and health care
facilities to support the settlements.79 None of this infrastructure serves nearby
Palestinian communities.80
74 Ibid., p. 16.
75 Ibid., p. 15.
76 Ibid. pp. 15-16.
77 Ibid., p. 16.
78 B’Tselem, Land Grab – Israel’s Settlement Policy in the West Bank (May 2022), available at
https://tinyurl.com/crz2kxbn, pp. 61-62.
79 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
25.
80 Amnesty International, Destination: Occupation – Digital Tourism and Israel’s Illegal
Settlements in the Occupied Palestinian Territories (2019), p. 29 (“the settlements and associated
infrastructure are not temporary, do not benefit Palestinians and do not serve the legitimate security
needs of the occupying power”), available at https://tinyurl.com/yasp35vn.
27
2.22 This segregation is most starkly illustrated by the water and road systems
in the West Bank.
2.23 The Israeli national water company, Mekorot, has owned the West Bank
water system since 1982. It operates “dozens of wells, trunk lines and reservoirs in
Area C that abstract water inside Palestinian territory and provide service instead
to the Israeli settlements in the West Bank”.81 Unlike Palestinian communities,
many of which are not linked to the Mekorot network and which frequently suffer
“lengthy water outages”,82 all Jewish Israeli settlements receive “developed-world
levels of water for drinking, sanitation and commercial use”.83
81 Human Rights Council, Report of the UN High Commissioner for Human Rights on Allocation
of water resources in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/HRC/48/43 (15 Oct. 2021), para. 18.
82 82 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the human rights situation
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on access to water
and environmental degradation, UN Doc. A/HRC/40/73 (30 May 2019), para. 51.
83 Ibid., para. 52.
28
Figure 2.3: Swimming Pool in Ma’ale Adumim. With water supply roughly
four times greater than that provided to Palestinian communities, Israeli
settlements such as Ma’ale Adumim stand in stark contrast to their Palestinian
neighbours 84
2.24 Since the occupation began in 1967, Israel has similarly configured the
highway network to connect the West Bank settlements “with each other and with
Israeli cities”.85 In particular, the National Roads Authority of Israel has
constructed hundreds of kilometres of roads in the West Bank that are designed to
serve the settlements.86 Palestinians are not even permitted to use some of the
roads, as explained in Section III(A) below.
2.25 In addition, as recounted in detail in the Court’s Advisory Opinion in the
Wall case, beginning in 2002, Israel constructed the 80-kilometre Wall that
84 Amnesty International, “The Occupation of Water” (29 Nov. 2017), available at
https://tinyurl.com/428hpfv8.
85 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), para. 50.
86 See OCHA, West Bank: The Humanitarian Impact of Israeli Settlement Activities (21 Dec. 2017),
available at https://tinyurl.com/23w4y65k.
29
significantly encroaches into the West Bank. The Court held that the construction
of the Wall violated international law and that it must be dismantled.87 Not only
does it still stand, it has also been extended in the years since 2004. The Wall
effectively incorporates territory in the West Bank where settlements are located
into Israel’s pre-1967 borders. As of 2022, on the Israeli (i.e., western) side of the
Wall in what is known as the “Seam Zone” (i.e., the area between the Green Line
and the Wall) there were approximately 71 settlements, in which over 85 percent
of Jewish Israeli settlers reside.88
Figure 2.4: Jewish settlers who live in the Rachel’s Tomb compound enjoy
their playground located next to a section of Israel’s Wall, separating them
from the West Bank city of Bethlehem in the background, 8 March 202289
87 Wall Advisory Opinion, para. 163.
88 See OCHA, The humanitarian impact of 20 years of the Barrier - December 2022 (30 Dec. 2022),
available at https://tinyurl.com/ysmyh52j. See also Wall Advisory Opinion, paras. 84-85, 119.
89 O. Balilty, “AP PHOTOS: Israel’s separation barrier, 20 years on,” Associated Press (27 June
2022), available at https://tinyurl.com/n3pv5kmb.
30
2.26 Israel facilitates the establishment, maintenance and expansion of
settlements in still another way. As detailed in the following sections, Israel takes
various measures that compel Palestinians who reside in the West Bank (including
East Jerusalem) to leave their land and homes. These measures free up a significant
amount of land in the OPT for Jewish Israeli settlements and supporting
infrastructure.
II. The Exclusion and Displacement of Palestinians from the OPT
2.27 To consolidate its control over the OPT, secure as much land as possible
for Jewish Israeli settlement, and alter the demographics in the territories it
controls, Israel excludes Palestinians from the OPT (Section A); compels the
displacement of Palestinians within the OPT through the control of residency rights
(Section B); and adopts and enforces land use policies that impede Palestinians’
ability to build housing and other structures, cause the demolition of Palestinian
homes and other structures, and evict Palestinians from their homes (Section C).
A. THE EXCLUSION OF PALESTINIANS FROM THE OPT
2.28 As Professor Khalidi explains in his expert report submitted herewith, early
Zionists like Theodor Herzl openly “called … for the removal of inhabitants of
Palestine to ‘other provinces and territories of the Ottoman Empire’”.90 Israel today
continues to heed Herzl’s words by taking various steps to prevent Palestinians
currently living outside the OPT from entering and residing in the OPT, thereby
minimizing the Palestinian population. It does so in three principal ways.
90 Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023), p. 5. QWS,
Vol. II, Annex 1.
31
2.29 First, Israel denies Palestinian refugees the right to enter or reside in the
OPT.91 “Palestine refugees” are those refugees eligible to receive UNRWA’s
services, i.e., people (and their descendants) who were displaced from their homes
in Mandatory Palestine during the Nakba in 1948.92 Today, there are approximately
5.9 million Palestine refugees.93 While many live in the West Bank or Gaza, the
majority live outside the OPT in Jordan, Syria and Lebanon.94 Over a million of
those outside the OPT remain stateless, with many living in crowded refugee camps
that lack basic infrastructure.95
91 HRW 2021 Report, p. 49.
92 UNRWA, “Palestine Refugees” (last accessed: 15 July 2023), available at
https://tinyurl.com/yc4wa2th.
93 Ibid.
94 See UNRWA, “Where We Work” (last accessed: 15 July 2023), available at
https://tinyurl.com/4898vxnn.
95 See N. Citino et al., “Generations of Palestinian Refugees Face Protracted Displacement and
Dispossession,” Migration Policy Institute (3 May 2023), available at
https://tinyurl.com/bdexnka3. The majority of Palestinian refugees, approximately 3.5 million, live
outside the OPT. Of those, the large majority of the approximately 1.1 million living in Syria and
Lebanon remain stateless, as well as approximately one quarter of the 2.4 million living in Jordan.
See also HRW 2021 Report, p. 203.
32
Figure 2.5: A woman walks past clothes left to dry in Burj al-Barajneh refugee
camp in Beirut, Lebanon, 29 January 201896
2.30 Israel denies Palestinian refugees living outside the OPT the possibility of
residing there, even if they have family in the OPT.97 In other words, despite being
Palestinian—many without foreign citizenship—they cannot enter or settle in the
OPT. This is in addition to Israel’s wholesale refusal to allow these refugees to
return to their homelands within Israel’s pre-1967 borders. Israel considers that
granting Palestine Refugees their right of return would mean the “destruction of
Israel as a Jewish State”.98 As noted by numerous UN Special Rapporteurs and
human rights experts, these refugees “have been systematically denied of their right
to return and forced to live in exile under precarious and vulnerable conditions
96 “In Lebanese camp for Palestinian refugees, fears after aid cut,” Reuters (30 Jan. 2018), available
at https://tinyurl.com/msr4k7zj.
97 HRW 2021 Report, p. 49.
98 Ibid., p. 47.
33
outside the borders of Palestine”.99 This exclusion “serve[s] the settler-colonial
project pursued by Israel”.100
2.31 Second, Israel denies residency rights in the OPT to Palestinians (and their
descendants) who resided in, but were not physically present in, the OPT in
September 1967. It does this through its control of “the population registry in the
West Bank and Gaza Strip, [which] record[s] every Palestinian birth, marriage,
divorce, address change, and death”.101 Inclusion in that registry is necessary to
have a right to reside in the West Bank (including East Jerusalem) or Gaza.102 Yet
at least 270,000 Palestinians who lived in the OPT before September 1967 were
excluded from the population registry—and therefore lost their residency rights—
because they were absent during the post-war census Israel conducted “either
because they had fled during the 1967 war or were abroad for study, work, or other
reasons”.103 After 1967, Israel erected barriers to their return.104 For example, until
2000, many seeking to return had to go through a “restrictive family reunification
process … based on low annual quotas and subject to arbitrary and evolving criteria
that failed to take into account genuine familial or historical ties” to the West Bank
or Gaza.105 Since 2000, Israel has largely frozen family reunification, as discussed
below at paragraph 2.33.106
99 OHCHR, Press Statement of Special Rapporteurs and Experts, Right of return of Palestinian
refugees must be prioritized over political considerations (21 June 2023), available at
https://tinyurl.com/27je9h27.
100 Ibid.
101 HRW 2021 Report, p. 51
102 Ibid., p. 16.
103 Ibid., p. 188.
104 Ibid.
105 Ibid.
106 Ibid., p. 190.
34
2.32 Third, after 1967, Israel struck hundreds of thousands more Palestinians
who temporarily left the OPT from the population registry.107 According to Human
Rights Watch, between 1967 and 1994, for example, Israel “canceled the registry
of 140,000 registered Palestinians, solely because they left the West Bank for a
period of more than three years”.108 During the same time period, Israel also
“revoked the residency of 108,878 Palestinians from Gaza either for staying abroad
for more than seven years or for not being present during censuses conducted in
1981 and 1988”.109 Israel also revoked the permanent resident status of at least
14,701 Palestinians from East Jerusalem between 1967 and the end of 2020.110
B. RESTRICTIONS ON THE RIGHT TO RESIDE IN THE OPT OF PALESTINIANS
PRESENT IN THE OPT
2.33 Palestinians who today reside in the OPT also face restrictions on, and
threats to, their right to reside there. By strictly controlling where Palestinians may
live, Israel strengthens its control of the OPT and displaces Palestinians from areas
where it seeks to develop settlements.
2.34 To begin with, Israel erects barriers to Palestinians who reside in the OPT,
but are not registered in the population registry, to becoming registered, which is a
requirement to obtain formal residency rights. Since 2000, Israel has largely
“refused to update the population registry or process applications for residency by
107 See Human Rights Watch, “Forget About Him, He’s Not Here”: Israel’s Control of Palestinian
Residency in the West Bank and Gaza (Feb. 2012), available at https://tinyurl.com/3jamdntv, p. 62.
Israeli rights groups B’Tselem and HaMoked also found it “likely that political and demographic
reasons dictated this policy”. B'Tselem & HaMoked, Perpetual Limbo: Israel’s Freeze on
Unification of Palestinian Families in the Occupied Territories (July 2006), available at
https://tinyurl.com/4zasntma; B’Tselem, “Residents without Status” (21 July 2013), available at
https://tinyurl.com/3439ebh3.
108 HRW 2021 Report, p. 188.
109 Ibid., pp. 188-189.
110 Ibid., p. 192.
35
unregistered Palestinians, their spouses, and close relatives, even if they had lived
in the West Bank or Gaza for years and had families, homes, jobs, or other ties
there”.111 Israeli authorities have cited the “security situation following the
outbreak of the second Intifada as the rationale for the freeze, but they have not
explained why their blanket refusal to process new applications is necessary for
security reasons”.112 According to Human Rights Watch, they “simply refuse to
process any new application without an explanation or to review whether the
particular individual presents a security threat”.113 A survey conducted in 2005
estimated that “more than 640,000 Palestinians in the West Bank and Gaza had a
parent, sibling, child, or spouse who was unregistered, even though 78.4 percent of
them had filed a family reunification request that had not yet been processed”.114
2.35 Unregistered individuals are at risk of deportation, having no legal
residency status in the OPT.115
2.36 In addition to expelling unregistered individuals, Israel has periodically
resorted to forced expulsions, sometimes en masse, of Palestinians from the OPT
as a punitive measure for suspected involvement in attacks on Israelis. For
example, in December 1992, during the First Intifada, “Israel deported 415
Palestinians from the Occupied Territories to South Lebanon”, then occupied by
111 Ibid., p. 189.
112 Ibid., pp. 189-190.
113 Ibid., p. 190.
114 Ibid., p. 189.
115 Ibid., p. 193.
36
Israel.116 This “was carried out following the killing that month of six members of
the Israeli security forces by Palestinians”.117
2.37 Palestinians who are registered and legally reside in the OPT also face a
number of restrictions on their residency in, and ability to relocate within, the OPT.
2.38 First, it is virtually impossible for those Palestinians registered in Gaza
formally to transfer their residency to the West Bank or East Jerusalem.118
Palestinians who are registered in Gaza but live in the West Bank are considered
to be “infiltrators” and face forced transfer to Gaza.119 In 2010, “around 35,000
Palestinians from Gaza were living in the West Bank with expired permits”.120
2.39 Second, Palestinians registered in the West Bank who temporarily relocate
to Gaza are often coerced into giving up their right to live in the West Bank when
they try to leave Gaza.121 The Israeli human rights organization Gisha explains:
“Palestinians registered as West Bank residents in the Palestinian population
registry who reside in the Gaza Strip must sign a document stating that they have
‘settled’ in Gaza permanently in order to apply for an Israeli permit to exit Gaza
116 B’Tselem, Deportation of Palestinians from the Occupied Territories and the Mass Deportation
of December 1992 (June 1993), available at https://tinyurl.com/3y3k63az, p. 7.
117 Ibid.
118 HRW 2021 Report, pp. 189-190.
119 Ibid., p. 191. See also Gisha, One-Way Ticket: Israel is committing forcible transfer of protected
persons in the occupied Palestinian territory, and most of the victims are women (25 Dec. 2022),
available at https://tinyurl.com/mw5ej6ch, p. 3.
120 HRW 2021 Report, pp. 190-191.
121 Gisha, One-Way Ticket: Israel is committing forcible transfer of protected persons in the
occupied Palestinian territory, and most of the victims are women (25 Dec. 2022), available at
https://tinyurl.com/mw5ej6ch, p. 3.
37
for any reason.”122 By making them sign this document, Israel effectively forces
Palestinians to “waive their right to move back to the West Bank in the future”.123
2.40 The practical consequence of this policy is that Palestinian families in
which one spouse is registered as a Gaza resident and the other as West Bank
resident can only live together in Gaza.124 This affects women disproportionately,
since women are often the ones who move to be near their spouse’s family after
marriage.125
2.41 Third, the right of Palestinians to reside in East Jerusalem is subject to
arbitrary revocation. According to the Israeli human rights organization B’Tselem,
Palestinian East Jerusalemites’ “permanent residency … may be revoked at any
time, at the complete discretion of the Minister of the Interior”.126 As stated,
between 1967 and the end of 2020, “Israel revoked the permanent resident status
of at least 14,701 Palestinians from East Jerusalem”.127
2.42 Human Rights Watch explains that the Israeli “[a]uthorities have justified
most revocations based on a failure to prove a ‘center of life’ in Jerusalem, targeting
those it said had been living in other parts of the OPT outside Jerusalem’s
municipal borders or who had studied or lived abroad for extended periods of
time”.128 Though “[t]hose who lose their residency may challenge the revocation
122 Ibid., p. 1.
123 Ibid.
124 Ibid.
125 Ibid.
126 B’Tselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid (12 Jan. 2021), available at https://tinyurl.com/4yzzwvuv, p. 2.
127 HRW 2021 Report, p. 192.
128 Ibid.
38
as unlawful or petition the Interior Ministry to recover their status,” doing so
requires going through “protracted legal and administrative processes that many
cannot afford”.129
2.43 Other expulsions from East Jerusalem are punitive in nature. For example,
as documented by the UN Office for the Coordination of Humanitarian Affairs
(“OCHA”) “[o]n 10 March 2016, the Israeli authorities forced the family of a
suspected perpetrator of a shooting attack to leave East Jerusalem … The four
eldest siblings and their mother were transported by the Israeli police to the
Qalandiya checkpoint and ordered to leave East Jerusalem”.130
2.44 Palestinians who are Israeli citizens or hold East Jerusalem residency rights
also face serious barriers to living there with their families. As the Committee on
the Elimination of Racial Discrimination (“CERD Committee”) noted in 2020, the
Citizenship and Entry into Israel Law “suspends the possibility, with certain rare
exceptions, of family reunification of Israeli citizens or residents of East Jerusalem
with Palestinian spouses living in the West Bank or Gaza Strip”.131 Moreover, even
if a Palestinian East Jerusalemite’s child or spouse lives in East Jerusalem, the child
or spouse cannot automatically obtain residency in East Jerusalem,132 placing them
at risk of expulsion from that territory. Former Israeli Arab Member of the Knesset
Haneen Zoabi explained the difficulty that East Jerusalemite’s spouses face: “ If an
129 Human Rights Watch, “Israel: Jerusalem Palestinians Stripped of Status” (8 Aug. 2017),
available at https://tinyurl.com/4rmn4j5v.
130 OCHA, “Israeli bills would allow punitive expulsions from the West Bank” (26 Apr. 2016),
available at https://tinyurl.com/yaa728kf.
131 CERD Committee, Concluding observations on the combined seventeenth to nineteenth reports
of Israel, UN Doc. CERD/C/ISR/CO/17-19 (27 Jan. 2020) (hereinafter, “2020 CERD Concluding
Observations”), para. 24.
132 Amnesty International, Israel’s Apartheid Against Palestinians: Cruel System Of Domination
And Crime Against Humanity (1 Feb. 2022) (hereinafter, “Amnesty International 2022 Report”),
available at https://tinyurl.com/bdfscyf2, p. 85.
39
Israeli man marries a Palestinian woman or vice versa, the authorities grant the
West Bank partner a temporary residence permit, which must be continuously
renewed, and the application is often rejected from the beginning”.133
2.45 These restrictions on Palestinian residency in East Jerusalem are a
centrepiece of Israel’s demographic control policies.134 In 2021, the Israeli Foreign
Minister confirmed the intentionally discriminatory nature of the Citizenship and
Entry into Israel Law, explaining that the law is “one of the tools aimed at ensuring
a Jewish majority in Israel”.135 Among other laws and policies, the government’s
plan for the municipality, the Jerusalem Master Plan, outright limited the number
of Palestinian residents to 40 percent of the city.136
2.46 As shown, Israel seeks to displace Palestinians living in the OPT to areas it
considers less desirable for settlement. Palestinians in annexed East Jerusalem face
the most precarious situation and are often displaced from there to other parts of
the West Bank. In turn, those in the West Bank—where Israel’s settlements are
133 “Why did MK Haneen Al Zoabi challenge the State of Israel?,” DW (8 Nov. 2014), available at
https://tinyurl.com/sxaaxwdx (“1.2 million Palestinians live in isolation on the margins of society,
and the majority of the Israeli society rejects their values, history and culture, according to Al Zoabi.
It does not stop there, in Al Zoabi’s words. Discrimination against Palestinians, according to Al
Zoabi, is evident by looking at many Israeli laws and she mentions some examples: take the issue
of reunification, for example, as Al Zoabi says: If an Israeli man marries a Palestinian woman or
vice versa, the authorities grant the West Bank partner a temporary residence permit, which must
be continuously renewed, and the application is often rejected from the beginning, according to Al
Zoabi ) (“ 1.2 ملیون فلسطیني یعیشون منعزلین على ھامش المجتمع، والغالبیة في المجتمع الإسرائیلي ترفض قیمھم وتاریخھم
وثقافتھم، حسب قول الزعبي. ولا یتوقف الأمر عند ھذا الحد، حسب تعبیر الزعبي. فالتمییز ضد الفلسطینیین، حسب قول الزعبي،
یتضح بإلقاء نظرة على الكثیر من القوانین الإسرائیلیة وتذكر بعض الأمثلة: لنأخذ قضیة لم الشمل مثلا، كما تقول الزعبي: إذا
تزوج إسرائیلي فلسطینیة أو العكس، فأن السلطات تمنح الشریك أو الشریكة القادمة من الضفة الغربیة رخصة إقامة مؤقتة والتي
.(”.یجب تجدیدھا بشكل مستمر، كما یتم في كثیر من الأحیان رفض الطلب أساسا، حسب قول الزعبي
134 Human Rights Watch, “Israel: Jerusalem Palestinians Stripped of Status” (8 Aug. 2017),
available at https://tinyurl.com/4rmn4j5v.
135 N. Shpigel, “Israel’s Parliament Votes to Extend Ban on Palestinian Family Unification,”
Haaretz (6 Mar. 2023), available at https://tinyurl.com/muva6ck2.
136 HRW 2021 Report, p. 63.
40
concentrated—are often displaced to Gaza. This “one way ticket”137 toward Gaza
serves Israel’s goal of “maximum Jews on maximum land … with minimum
Palestinians”.138
C. CONSTRUCTION OF THE DEVELOPMENT OF PALESTINIAN COMMUNITIES
AND THE DESTRUCTION OF, AND EVICTION FROM, THOSE COMMUNITIES
2.47 In addition to displacing Palestinians from their homes in the West Bank
(including East Jerusalem) by denying and revoking residency rights, Israel also
constricts the development of Palestinian communities there through its land use
policies. Those policies have the further effect of forcing Palestinians to abandon
their homes located in areas that Israel deems desirable for Jewish Israeli
settlement. This is achieved by four principal measures.
2.48 First, Israel makes much of the land in Area C of the West Bank and East
Jerusalem unavailable for Palestinian use. As stated, Israel has designated over 70
percent of Area C as State land, nature reserves or military zones. Much of this land
has been allocated to Jewish Israeli settlers,139 allowing the construction of the
137 Gisha, One-Way Ticket: Israel is committing forcible transfer of protected persons in the
occupied Palestinian territory, and most of the victims are women (25 Dec. 2022), available at
https://tinyurl.com/mw5ej6ch, p. 1.
138 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
46.
139 Human Rights Council, Report of the UN High Commissioner for Human Rights on Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, UN Doc. A/HRC/52/76 (15 Mar. 2023), para. 8.
41
settlements that are now home to approximately 500,000 Jewish Israeli settlers.140
By contrast, Palestinians have been allocated only 0.7 percent of that land.141
2.49 In addition, as the UN Independent International Commission of Inquiry on
the Occupied Palestinian Territory, including East Jerusalem, and Israel reported,
in the West Bank “[l]and available for Palestinian agriculture has been reduced
from 2.4 million dunams [(240,000 hectares)] in 1980 to around 1 million dunams
[(100,000 hectares)] in 2010”.142 And in East Jerusalem, as of 2017, Israel had
expropriated about 38 percent of land—mostly private Palestinian land but some
of it public—“for Jewish-only use, leaving Palestinian Jerusalemites with a
diminished land base to accommodate their growing population”.143
2.50 Israel has also “frozen the land registration process” for Palestinians
throughout the West Bank and East Jerusalem.144 This freeze applies only to non-
Jewish landowners, as Jewish settlements have continued to be registered since the
beginning of the occupation.145 Today, approximately 50 percent of the land in East
Jerusalem “is not registered in any form”.146 According to Human Rights Watch,
140 C. Parker, “Jewish settler population in West Bank passes half a million,” Washington Post (2
Feb. 2023), available at https://tinyurl.com/275bjwsf.
141 C. Levinson, “Just 0.7% of State Land in the West Bank has been allocated to Palestinians, Israel
admits,” Haaretz (28 Mar. 2013), available at https://tinyurl.com/46s6c9w2.
142 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 72.
143 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
44.
144 HRW 2021 Report, p. 112.
145 Ir Amim, Displaced in Their Own City: The Impact of Israeli Policy in East Jerusalem on the
Palestinian Neighborhoods of the City beyond the Separation Barrier (June 2015), available at
https://tinyurl.com/4mzmkjf5, p. 10.
146 Ibid.
42
this puts unregistered Palestinian lands at risk of confiscation and makes it difficult
for their owners to obtain building permits.147
2.51 Second, in the 30 percent of Area C of the West Bank that Israel has not
designated as State land, nature reserves or military zones, and in East Jerusalem,
Israel’s land use policies effectively prevent Palestinians from building new
structures. As Amnesty International noted, “zoning and planning in Area C is
subject to a combination of selectively applied Ottoman, British and Jordanian laws
amended by a series of Israeli military orders issued since 1967 to advance Israeli
territorial and demographic objectives in the area”.148
2.52 In particular, Israel refuses to enact updated master plans that reflect the
present and future needs of Palestinian communities, while simultaneously using
outdated plans as a pretext for prohibiting virtually all construction and new
infrastructure hook-ups for Palestinians in Area C.149 The UN Independent
International Commission of Inquiry on the Occupied Palestinian Territory,
including East Jerusalem, and Israel explained: “The Israeli Civil Administration
and the Israeli courts continue to rely on these outdated plans when deciding on
Palestinian construction permit requests while, at the same time, approving
hundreds of new master plans to change the zoning to allow for the construction of
Israeli settlements.”150 The UN Independent International Commission of Inquiry
on the Occupied Palestinian Territory, including East Jerusalem, and Israel further
observed that “[s]tatements made by Israeli officials indicate that Palestinian
147 See HRW 2021 Report, p. 112.
148 Amnesty International 2022 Report, p. 158.
149 B’Tselem, Acting the Landlord: Israel’s Policy in Area C, the West Bank (June 2013), available
at https://tinyurl.com/bdjsyvf2, pp. 13-15.
150 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 43.
43
construction is seen as an impediment to Israeli settlement of the West Bank,
requiring action such as confiscation, demolitions and displacement”.151
2.53 As a result of these policies, between 2009 and 2018, Israel approved only
2 percent of Palestinian construction applications in Area C of West Bank.152 In
East Jerusalem between 1991 and 2018, Israeli municipal planners approved only
9,536 building permits for Palestinians, while approving 21,834 permits for
Israelis.153 Most Palestinian building permit applications are rejected “on the
grounds that the relevant area has not been zoned for construction, even when the
land is owned by the applicant”.154
2.54 These zoning restrictions significantly contribute to the displacement of
Palestinians. As explained by the OCHA, “[t]o meet their housing and livelihood
needs, many Palestinians are left with little choice than to build without permits,
risking demolition and displacement, or to move elsewhere”.155 In addition, “the
restrictive planning regime applied by Israel in Area C contributes to the creation
of a coercive environment on residents, leading to risk of forcible transfer”.156
151 Ibid., para. 45.
152 Peace Now, “(Dis)approvals for Palestinians in Area C – 2009-2020” (31 Jan. 2021), available
at https://tinyurl.com/yc6zksdb.
153 Peace Now, Press Statement: Jerusalem Municipal Data Reveals Stark Israeli-Palestinian
Discrepancy in Construction Permits in Jerusalem (12 Sept. 2019), available at
https://tinyurl.com/y479vn5d.
154 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 42.
155 OCHA, “Most Palestinian plans to build in Area C are not approved” (22 June 2021), available
at https://tinyurl.com/38tvf8jy.
156 Ibid.
44
2.55 Third, Israel systematically demolishes structures belonging to Palestinians
in the OPT. Any construction carried out without a building permit—even a small
addition or renovation to an existing home, for example—can result in the
demolition of the structure.157 Likewise, if a structure is not in compliance with
zoning restrictions, it can be demolished. Indeed, to facilitate the demolition of
Palestinian-owned structures, the Israeli government provides funds to Jewish-
Israeli settlers to monitor Palestinian zoning violations and to identify structures
for destruction.158
157 Z. Al Tahhan, “Palestinians face expulsions as Israel tightens hold on West Bank: Israeli officials
push to increase the budget for settlers to monitor and restrict Palestinian construction to $11m,” Al
Jazeera (11 Apr. 2023), available at https://tinyurl.com/3mvhmanz.
158 Ibid.
45
Figure 2.6: Palestinian Motasem Farrah (centre) and a friend tear down
Farrah’s home in an Arab neighbourhood in east Jerusalem, 12 March 2012.
Israel often tells Palestinians who build without permits that they must tear
down the house themselves or they will be charged by Israel for the cost of
knocking it down.159
2.56 Just in East Jerusalem, between 2009 and 2020, Israel reportedly
demolished 1,434 structures, citing the lack of a permit (which it refuses to give)
in 98 percent of cases.160 In contrast, Israeli authorities “almost never demolish the
homes of Jewish Israelis in Jerusalem, even where there are building violations”.161
And, according to the OCHA, as of 11 July 2023, Israel has demolished more than
159 L. Garcia-Navarro, “Walls of Palestinian Homes Come Tumbling Down,” NPR (10 July 2012),
available at https://tinyurl.com/59hx8xn2.
160 HRW 2021 Report, p. 114.
161 Ibid., p. 115.
46
9,600 Palestinian structures in the West Bank since 2009,162 displacing over 14,000
Palestinians.163
2.57 Moreover, it is virtually impossible for Palestinians to challenge demolition
orders. As B’Tselem explained in 2019, “there has not been a single case in which
the [Israeli High Court of Justice] granted a petition Palestinians filed against the
demolition of their home”.164
Figure 2.7: An Israeli army excavator demolishes a building in the Palestinian
village of Sur Baher165
2.58 In addition to demolishing Palestinians’ homes, Israeli authorities also
demolish other structures that Palestinian communities use, including commercial,
farm and industrial structures, and infrastructure, often under the pretext of zoning
162 OCHA, “Data on Demolition and Displacement in the West Bank,” (last accessed: 12 July 2023),
available at https://tinyurl.com/n9e7x7x4.
163 Ibid.
164 B’Tselem, Fake Justice: The Responsibility Israel’s High Court Justices Bear for the Demolition
of Palestinian Homes and the Dispossession of Palestinians (Feb. 2019), available at
https://tinyurl.com/yayeftnd, p. 22.
165 “Israeli crews demolish Palestinian homes in East Jerusalem,” The Guardian (22 July 2019),
available at https://tinyurl.com/22p7anue.
47
violations.166 Since the beginning of the occupation, Israel has demolished more
than 50,000 structures in the OPT.167 Most strikingly, Israel has destroyed schools
serving Palestinian children in East Jerusalem and the West Bank. Since 2010, 20
such schools were demolished.168 In the process of carrying out the demolitions,
Israeli soldiers sometimes shoot “bullets, tear gas and sound bombs” at Palestinian
children and their parents.169 In May of this year, Israel demolished an EU-funded
primary school in the village of Jabbet al-Dhib. The school, the remains of which
are shown below, served dozens of children, and “had replaced another school
demolished by Israel in 2019”.170
166 OCHA, West Bank Demolitions and Displacement: An Overview (Jan.-Mar. 2023), available at
https://tinyurl.com/cubturpr, pp. 1-2.
167 Amnesty International, “Israel’s Occupation: 50 Years of Dispossession” (last accessed: 30 June
2023), available at https://tinyurl.com/bderjwtb.
168 S. Davidson, “Israel’s demolition surge: Schools become a primary target,” Al Jazeera (11 May
2003), available at https://tinyurl.com/5n93ypwx.
169 Ibid.
170 “Israel demolishes EU-funded Palestinian school, drawing criticism,” Le Monde (7 May 2023),
available at https://tinyurl.com/p2mr2mmy; The Diplomatic Service of the European Union, Press
Statement: Israel/Palestine: Statement by the Spokesperson on the demolition of Jubbet Adh Dhib
school (7 May 2023), available at https://tinyurl.com/y5t6fref.
48
Figure 2.8: A Palestinian boy picks up papers and books from the site of a
school that was demolished by the Israeli authorities in the village of Jabbet al-
Dhib, east of Bethlehem in the occupied West Bank, 7 May 2023171
2.59 By denying Palestinians construction permits while simultaneously
destroying those structures that they build without proper permits,172 Israel
“pressures Palestinians to … abandon their homes and livelihoods and relocate,
usually to towns or cities under the administrative and civil control of the
[Palestinian Authority]”.173 School demolitions also compel displacement because,
according to Save the Children, “there’s no way for their children to get an
education”.174
171 “Israel demolishes EU-funded Palestinian school, drawing criticism,” Le Monde (7 May 2023),
available at https://tinyurl.com/p2mr2mmy.
172 See UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
paras. 41-42, 60.
173 HRW 2021 Report, p. 185.
174 S. Davidson, “Israel’s demolition surge: Schools become a primary target,” Al Jazeera (11 May
2003), available at https://tinyurl.com/5n93ypwx.
49
2.60 Fourth, in addition to demolishing Palestinian structures, Israel evicts
Palestinians from their homes and land, often because of their inability to secure
proper land tenure in light of Israel’s freeze on the registration of Palestinian land.
For example, between 2005 and 2018, “Israeli authorities have issued hundreds of
eviction orders against Palestinians” in the West Bank on grounds that they are
“illegally holding” State land.175 Nonetheless, Human Rights Watch reported that
41.5 percent of the territory encompassed by the 600 eviction orders against
Palestinians between 2005 and 2018 “had not formally been declared by authorities
as State land”.176
2.61 In East Jerusalem, Palestinians also “face the risk of imminent forced
displacement by the Israeli authorities”.177 The case of the neighbourhood of
Sheikh Jarrah is illustrative.178 The families currently living there were displaced
from West Jerusalem in 1948179 and resettled in Sheikh Jarrah.180 Now, the land
upon which their homes were built, which had been owned by two Jewish
organizations before 1948, is claimed by Jewish Israeli settlers “who argue that the
Palestinians are, in effect, squatters”.181
2.62 As the OPT Special Rapporteur noted, the precarity of the residents of
Sheikh Jarrah is “emblematic of the threats of forced displacement … with the aim
175 HRW 2021 Report, p. 178.
176 Ibid.
177 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on the legal status of
the settlements, UN Doc. A/HRC/47/57 (29 July 2021), para. 18.
178 Ibid.
179 P. Adams, “Jerusalem's Sheikh Jarrah: The land dispute in the eye of a storm,” BBC (26 May
2021), available at https://tinyurl.com/yunj5ck8.
180 Ibid.
181 Ibid.
50
of establishing a Jewish majority in the city and creating irreversible demographic
facts on the ground” and “underlines Israeli attempts to permanently change the
Palestinian character of East Jerusalem and pave the way for further settler
expansion”.182 The Special Rapporteur continued, explaining that “[t]his situation
of forced eviction in Shaykh Jarrah is mirrored in other Palestinian neighbourhoods
across East Jerusalem, including Bayt Hanina, Bayt Safafa, the Old City, Ra’s al-
Amud and Silwan”.183 In total, in 2021, “more than 970 people, including 424
children, [faced] the risk of displacement” due to pending evictions in East
Jerusalem.184 For example, as recently as 11 July 2023, Israel evicted Nora Ghaith
and Mustafa Sub Laban from the home that they had lived in in East Jerusalem
since 1953.185
182 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on the legal status of
the settlements, UN Doc. A/HRC/47/57 (29 July 2021), para. 18.
183 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/40/73 (30 May 2019), para. 21.
184 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on the legal status of
the settlements, UN Doc. A/HRC/47/57 (29 July 2021), para. 19.
185 OHCHR, Press Release: Israel: UN experts condemn forced eviction of east Jerusalem families
(12 July 2023), available at https://tinyurl.com/ytbd7xf2.
51
Figure 2.9: Nora Ghaith-Sub Laban, centre, is comforted by her son after her
family’s eviction from their home to make way for Israeli settlers in
Jerusalem’s Old City, 11 July 2023186
III. Fragmentation of, and Restrictions on Movement Within, the OPT
2.63 In addition to strictly controlling where Palestinians may reside within the
OPT and causing their displacement, Israel has fragmented the Palestinian
population there through an elaborate regime that restricts Palestinians’ movement
and physically isolates them from each other. According to the Israeli human rights
organization Gisha, Israel uses this tool to pursue its “illegitimate demographic and
political goals of isolating the Gaza Strip and advancing de facto annexation of the
West Bank”.187 Indeed, as explained by a former Special Rapporteur for the OPT,
186 J. Frankel, “’I will not stay quiet’: Israel evicts Palestinian family from home after 45-year legal
battle,” Associated Press (11 July 2023), available at https://tinyurl.com/sr7j7krx.
187 Gisha, One-Way Ticket: Israel is committing forcible transfer of protected persons in the
occupied Palestinian territory, and most of the victims are women (25 Dec. 2022), available at
https://tinyurl.com/mw5ej6ch, p. 3. See also Amnesty International 2022 Report, p. 19 (“Since the
mid-1990s the Israeli authorities have imposed a closure system within the OPT and between the
OPT and Israel, gradually subjecting millions of Palestinians who live in the West Bank, including
East Jerusalem, and Gaza Strip to ever more stringent restrictions on movement based on their legal
52
“[a] central strategy of Israeli rule has been the fragmentation of the Palestinian
territory into separate areas of population control, with Gaza, the West Bank and
East Jerusalem physically divided from one another”.188
2.64 At the same time, Israel isolates the OPT from the outside world. The OPT
“lacks any secure land, sea or air access to the outside world”, and Israel controls
all of its borders except the Rafah crossing between Gaza and Egypt.189
2.65 These divisions “sever[] the Palestinians under occupation not only from
each other socially, economically and politically, but also from Palestinians living
in Israel and the wider world”.190
2.66 The CERD Committee explained that this fragmentation and isolation is
furthered by “the implementation of a complex combination of movement
restrictions consisting of the Wall, the settlements, roadblocks, military
checkpoints, the obligation to use separate roads and a permit regime that impacts
the Palestinian population negatively”.191 The Human Rights Committee (“HRC”)
status. These restrictions are another tool through which Israel segregates Palestinians into separate
enclaves, isolates them from each other and the world, and ultimately enforces its domination”).
188 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
42.
189 Ibid.
190 Ibid.
191 2020 CERD Concluding Observations, para. 22. See also Human Rights Council, Report of
Special Rapporteur S. M. Lynk on the situation of human rights in the Palestinian territories
occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para. 42 (noting that that the physical
fragmentation of the OPT is achieved through “an elaborate series of walls, checkpoints, barricades,
military closure zones, Palestinian-only roads and Israeli-only roads”); HRW 2021 Report, pp. 80-
85.
53
and the Committee on Economic, Social and Cultural Rights (“CESCR”) have
reached similar findings.192
2.67 Israel invokes the pretence of security to justify these measures, but Human
Rights Watch has observed that its restrictions on movement are implemented “in
so sweeping a fashion that it is difficult to see them as motivated primarily by
security—rather than demographic—considerations”.193 This has led UN mandate
holders to draw parallels between the Palestinian enclaves in the OPT and the
nominally self-governing black homelands South Africa created during apartheid
known as “Bantustans”.194
2.68 Israel’s policy of fragmenting, isolating and restricting Palestinian
movement manifests itself in different ways across the OPT. In the West Bank
(including East Jerusalem), Israel’s military occupation and settlement activity has
created a labyrinth of physical and bureaucratic barriers to Palestinians’ freedom
of movement, affecting all aspects of their daily lives (Section A). In Gaza, Israel’s
16-year blockade has isolated 2.2 million Palestinians from the rest of the world,
and created one of the world’s largest and longest standing humanitarian crises
(Section B).
192 Human Rights Council, Concluding observations on the fourth periodic report of Israel, UN.
Doc. CCPR/C/ISR/CO/4 (21 Nov. 2014), para. 18; CESCR, Concluding observations on the fourth
periodic report of Israel, UN Doc. E/C.12/ISR/CO/4 (12 Nov. 2019), para. 11(c).
193 HRW 2021 Report, p. 51.
194 See UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 71; UN
Commission on Human Rights, Report of Special Rapporteur J. Ziegler on the right to food, UN
Doc. E/CN.4/2004/10/Add.2 (31 Oct. 2003), para. 62(h).
54
A. THE FRAGMENTATION OF, AND RESTRICTIONS ON MOVEMENT IN, THE
WEST BANK (INCLUDING EAST JERUSALEM)
2.69 Israel has taken various measures to physically fragment the predominantly
Palestinian areas of the West Bank (including East Jerusalem). Though East
Jerusalem itself is treated as part of Israel proper, Palestinians there are physically
cut off from the non-Palestinian parts of the city. And the remainder of the West
Bank is “splintered into 165 disconnected enclaves”.195 The most significant means
by which Israel has achieved this is (i) the construction of the Wall; (ii) requiring
Palestinians to have permits to travel from one part of the OPT to another; (iii)
a system of checkpoints and roadblocks in the West Bank; and (iv) the maintenance
of segregated roads and infrastructure in the West Bank.
2.70 First, through the construction of the Wall, Israel “broke up contiguous
Palestinian urban and rural blocs, severed inter-community ties that had been
forged and cemented over the course of many generations, and abruptly imposed
an arbitrary reconfiguration of space based on settlement boundaries and to suit the
convenience of Israeli security forces”.196
2.71 In East Jerusalem, the Wall cuts through the predominantly Palestinian
sections of the city. As a result, 120,000-140,000 Palestinian Jerusalemites live on
the West Bank side of the Wall, physically separated from access to the city and its
services.197 They experience significant shortages of schools, higher housing
195 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
42.
196 B’Tselem, “The Separation Barrier” (11 Nov. 2017), available at https://tinyurl.com/mjvsk9cs.
197 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
44.
55
congestion, and poorer access to municipal services (including sewage and water)
than the Jewish Israeli residents of East Jerusalem.198
Figure 2.10: Palestinians wait at the Qalandia checkpoint along the Wall
separating East Jerusalem from the rest of the West Bank, 29 April 2022199
2.72 In Area C of the West Bank, the barrier has isolated “38 Palestinian
localities that together cover 9.4% of the area of the West Bank, and has trapped
them in enclaves known as ‘seam zones’”.200 As stated, these “seam zones” are
“sections of Palestinian land within the West Bank that fall between the fence/wall
and the Green Line and are therefore severed from the OPT”.201 Because Israel has
declared them closed military zones, “Palestinian residents of these localities or
198 Ibid.
199 O. Balilty, “AP PHOTOS: Israel’s separation barrier, 20 years on,” Associated Press (27 June
2022), available at https://tinyurl.com/n3pv5kmb.
200 Amnesty International 2022 Report, p. 97.
201 Ibid. See also OCHA, The humanitarian impact of 20 years of the Barrier - December 2022 (30
Dec. 2022), available at https://tinyurl.com/ysmyh52j.
56
Palestinians who want to visit have to obtain special permits for entry and exit to
their homes and acquire separate permits to access their agricultural land”.202
2.73 Israel’s closure of the “seam zones” not only impacts the approximately
11,000 Palestinians who reside there but also members of the approximately 150
Palestinian communities outside the zones who own or use agricultural land within
them.203 Even those who manage to obtain permits must contend with gates in the
barrier that open at irregular and limited times.204 Jewish Israeli settlers, however,
can move within the seam zones without restriction.205
2.74 These restrictions in and around the seam zones impede the ability of
Palestinians there to access their places of work and essential services in the rest of
the West Bank.206 Israel’s “gate-and-permit regime” further undermines the
agricultural livelihoods of Palestinians who are unable freely to access their
farming and grazing lands located in the seam zones.207 Likewise, the Palestinian
communities there face challenges in timely receiving essential medical and fire
services.208
202 Amnesty International 2022 Report, p. 97.
203 See OCHA, The humanitarian impact of 20 years of the Barrier - December 2022 (30 Dec.
2022), available at https://tinyurl.com/ysmyh52j; Human Rights Council, Joint NGO Statement on
the human rights situation in Palestine and other OATs/Seam zones, UN Doc. A/HRC/21/NGO/58
(24 Aug. 2012) (“[Palestinians] who live within seam zones must apply to the Israeli Civil
Administration for a ‘permanent resident ID’ in order to remain on their own land. Their movement
is tightly controlled through the use of checkpoints and a permit regime, which in turn intrudes upon
all aspects of their day-to-day activities and greatly compromises the quality of life”).
204 See OCHA, The humanitarian impact of 20 years of the Barrier - December 2022 (30 Dec.
2022), available at https://tinyurl.com/ysmyh52j.
205 BADIL, Seam Zones (2012), available at https://tinyurl.com/4s9v5zf5, p. 7.
206 OCHA, The humanitarian impact of 20 years of the Barrier - December 2022 (30 Dec. 2022),
available at https://tinyurl.com/ysmyh52j.
207 Ibid.
208 Ibid.
57
2.75 Second, Israel severely restricts the ability of West Bank Palestinians to
travel to East Jerusalem, Gaza and abroad through a complex system of travel
permits.209 This is so even though it agreed, as part of the Oslo Accords, that the
West Bank and Gaza form “a single territorial unit”.210 The restrictions apply to
travel for essentially any purpose, including employment, training, studying,
working, receiving medical treatment, and visiting a sick relative.211 These travel
permits are difficult to obtain,212 in part because the requirements and procedures
to be followed are often unpublished, and when published they are published in
Hebrew and not translated into Arabic.213 By comparison, Jewish Israeli settlers
enjoy broad freedom of movement and do not require similar permits.214
209 B’Tselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid position paper (12 Jan. 2021), available at https://tinyurl.com/4yzzwvuv, p. 5.
210 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II) (28 Sept.
1995) (hereinafter, “Oslo II”), art. XI(1). Indeed, Israel has made specific undertakings to permit
regular “safe passage” between the West Bank and Gaza. Israeli-Palestinian Protocol Concerning
Safe Passage Between the West Bank and the Gaza Strip (5 Oct. 1999) (hereinafter. “Protocol
Concerning Safe Passage”), art. 1; Government of Israel & Palestinian Authority, Agreed
Documents on Movement and Access from and to Gaza (15 Nov. 2005) (hereinafter, “Agreed
Principles for Rafah Crossing”).
211 Gisha, “Procedures and Policies” (2015), available at https://tinyurl.com/38ecx5h9. See also
HRW 2021 Report, p. 83 (“Palestinians and settlers enjoy vastly different levels of freedom of
movement. Israeli authorities bar West Bank Palestinians from entering large sections of the West
Bank itself unless they have a difficult-to-obtain, time-limited permit”.).
212 See, e.g., Gisha, “The Permit Regime: Testimonies” (28 July 2022), available at
https://tinyurl.com/4b8cm473 (“Under the permit regime, Palestinians in Gaza are only eligible to
apply for a travel permit in a rigid and narrow set of circumstances; Israel’s criteria are purposefully
strict so as to deprive the vast majority of the population from even being considered for travel.”).
See also F. Akram, “For Palestinians, Israeli permits a complex tool of control,” Associated Press
(30 Apr. 2018), available at https://tinyurl.com/2p9czdk6 (“In Gaza, under blockade since a 2007
takeover by the militant Hamas, even the small number of permits for “exceptional” entry to Israel
plummeted. Last year, fewer than 6,000 people a month left on average, roughly half the level of
2016, according to the Israeli rights group Gisha”).
213 Gisha, “Procedures and Policies” (2015), available at https://tinyurl.com/38ecx5h9.
214 B’Tselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid position paper (12 Jan. 2021), available at https://tinyurl.com/4yzzwvuv, p. 5.
58
2.76 Because they are generally forbidden from traveling abroad through
Israel,215 “Palestinians from the West Bank, including those who hold foreign
passports, can only travel abroad via the Allenby / King Hussein crossing with
Jordan, which is controlled by Israel.”216 The Israeli military and security forces
can and frequently do ban Palestinians from exiting the OPT, “often on the basis
of ‘secret information’ that Palestinians cannot review and therefore challenge”.217
2.77 Third, Israel maintains over 600 checkpoints and roadblocks throughout the
West Bank which further restrict Palestinians' ability to move freely within, to and
from the West Bank.218 This system of checkpoints and road obstacles allows
Israeli forces to quickly close or open any given area, giving Israel what the OCHA
has termed “an adaptable system of control” in the West Bank.219
2.78 In July 2018, the OCHA “recorded 705 permanent obstacles across the
West Bank restricting or controlling Palestinian vehicular, and in some cases
pedestrian, movement”.220 The obstacles include “140 fully or occasionally-staffed
checkpoints, 165 unstaffed road gates (of which nearly half are normally closed),
149 earth mounds and 251 other unstaffed obstacles (roadblocks, trenches, earth
walls, etc.)”.221 This dizzying array of obstacles is depicted in Figure 2.11,
following this page.
215 Amnesty International 2022 Report, p. 95.
216 Ibid.
217 Ibid.
218 HRW 2021 Report, p. 83. See also Amnesty International 2022 Report, p. 97.
219 OCHA, “Over 700 road obstacles control Palestinian movement within the West Bank” (8 Oct.
2018), available at https://tinyurl.com/ywam97jp.
220 Ibid.
221 Ibid.
Figure 2.11
59
2.79 At these checkpoints, security forces have the authority “to turn back
Palestinians without reason”.222 By contrast, “Israeli settlers, residents, and
visitors, along with foreign tourists” are given “largely unfettered freedom of
movement throughout the West Bank”.223
2.80 The OPT Special Rapporteur has explained that Palestinians who attempt
to exercise their freedom of movement by crossing checkpoints “are routinely
harassed and obstructed”, often turning what should be a short commute into an
hours-long, humiliating journey.224 Sometimes the harassment Palestinians face
when trying to cross through the checkpoints is so severe that they are forced to
abandon their journeys.225 The existence of the checkpoints and the harassment to
which Palestinians are subjected impede the ability of Palestinians to reach their
places of employment,226 attend school (especially female students),227 and access
health care.228
2.81 To give just one example, pregnant women, including those in labour, are
frequently delayed at checkpoints. According to the Information Health Centre of
the Palestinian Ministry of Health, from 2000 to 2006, “69 cases of Palestinian
222 HRW 2021 Report, p. 84.
223 Ibid.
224 UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), para. 13.
225 See B’Tselem, “Restrictions on Movement” (11 Nov. 2017), available at
https://tinyurl.com/3rtczs7y.
226 See UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), para. 13.
227 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 64(c).
228 See Human Rights Council, The issue of Palestinian pregnant women giving birth at Israeli
checkpoints, UN Doc. A/HRC/4/57 (23 Feb. 2007), paras. 4-5; WHO, Right to Health: Barriers to
health and attacks on health care in the occupied Palestinian territory (2022), available at
https://tinyurl.com/43mv6tc5.
60
pregnant women giving birth at Israeli checkpoints had been recorded”.229
According to the same figures, during the same time frame, 35 infant and five
maternal deaths were recorded at checkpoints due to the lack of urgent care
required.230
2.82 Fourth, Israel limits Palestinians’ freedom of movement in the West Bank
by maintaining a segregated road system. Human Rights Watch has explained that
“there are more than 40 kilometers of West Bank roads that authorities prohibit
Palestinians from traveling on and another 19 kilometers of West Bank roads, not
including in [the West Bank city of] Hebron, on which Palestinian travel is
restricted”.231 Palestinians instead must use a “rudimentary secondary road
network”.232 Access even to that network from Palestinian enclaves is controlled
by gates; the Israeli authorities use the gates to “cut off traffic between different
parts of the West Bank”.233 The segregated road system in the West Bank is
illustrated in the infographic produced by the Canadian NGO Visualizing Impact,
reproduced as Figure 2.12 following this page.
2.83 The current situation in the West Bank city of Hebron is a microcosm of
how Israel controls Palestinians’ movement. There, Israeli authorities “prohibit
Palestinians from walking on large sections of what used to be the central
thoroughfare of the city as part of a policy of making those areas ‘sterile’ of
Palestinians, as per the parlance of the Israeli army”.234 In other parts of the city
229 Human Rights Council, The issue of Palestinian pregnant women giving birth at Israeli
checkpoints, UN Doc. A/HRC/4/57 (23 Feb. 2007), para. 4.
230 Ibid., para. 6.
231 HRW 2021 Report, p. 93.
232 Ibid., p. 94.
233 Ibid. See also OCHA, “Over 700 road obstacles control Palestinian movement within the West
Bank” (8 Oct. 2018), available at https://tinyurl.com/ywam97jp.
234 HRW 2021 Report, p. 93.
Figure 2.12
61
“Palestinians are barred from accessing certain streets even on foot, which are open
only to Jewish settlers and foreign nationals”.235 A map produced by OCHA
showing access-restricted areas in Hebron, shaded in grey, which is dotted with
checkpoints, is reproduced as Figure 2.13, following page 62.236 That figure also
depicts in red the roads that are closed to Palestinian vehicle or pedestrian traffic.
2.84 Palestinian homes and shops with entrances on such streets are barricaded
shut, as shown below.
Figure 2.14: An Israeli settler walks past a Palestinian house with verandas
covered in meshing along the Israeli-controlled Shuhada street in the West
Bank city of Hebron, 28 January 2020237
235 Amnesty International 2022 Report, p. 98. See also B’Tselem, Press Release: Separation not
only on buses, but also on streets of Hebron (6 Mar. 2013), available at
https://tinyurl.com/3mu5yjta.
236 OCHA, “The isolation of Palestinians in the Israeli-controlled area of Hebron city continues”
(13 Apr. 2017), available at https://tinyurl.com/yxcpr6x4.
237 A. Liel, “Trump’s Plan for Palestine Looks a Lot Like Apartheid,” Foreign Policy (27 Feb.
2020), available at https://tinyurl.com/ymw6zr6c.
62
2.85 The CERD Committee has taken note of these restrictions and expressed its
shock “at the hermetic character of the separation of the two groups, who live on
the same territory but do not enjoy either equal use of roads and infrastructure”.238
B. ISRAEL’S ONGOING BLOCKADE OF GAZA
2.86 Since 2007, Israel has blockaded Gaza, an area of just 365 sq. km, by air,
sea, and land. Home to approximately 2.2 million people, Gaza is among the most
densely populated territories in the world.239 Half of Gaza’s population is children
and more than two-thirds are refugees (i.e., those displaced from Mandatory
Palestine in 1948 and their descendants).240 Through what a former OPT Special
Rapporteur described as a “medieval military blockade”,241 Israel has completely
isolated this already vulnerable population from the outside world. This constitutes
the most draconian restriction on Palestinians’ freedom of movement and is the
culmination of Israel’s policy of fragmenting Palestinians into isolated enclaves.
2.87 After its “disengagement” and the withdrawal of Israeli settlers and troops
from Gaza in 2005, Israel began imposing increased restrictions on the movement
of people and goods in and out of the territory. In January 2006, Hamas won the
Palestinian legislative elections and took control of Palestinian governance of Gaza
238 2020 CERD Concluding Observations, para. 22.
239 See OCHA, “Crisis Context and Impact (based on the 2023 Humanitarian Response Plan),”
available at https://tinyurl.com/ytjuefcd.
240 See Human Rights Council, Report of the independent international commission of inquiry on
the protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), paras.
15, 18. See also N. Citino et al.. “Generations of Palestinian Refugees Face Protracted Displacement
and Dispossession,” Migration Policy Institute (3 May 2023), available at
https://tinyurl.com/3sjyur69.
241 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
35.
Figure 2.13
63
in June 2007.242 At that juncture, “the Israeli Government declared Gaza ‘hostile
territory’” and “citing security concerns, announced a number of new sanctions and
restrictions on the access and movement of people and goods, ultimately amounting
to a blockade by sea, air and land”.243 Since then, Palestinians have been literally
trapped in the territory. NGOs such as Human Rights Watch and the Norwegian
Refugee Council have called Gaza the “world’s largest open air prison, where the
prison guard is Israel”.244
2.88 As a result of the blockade, residents of Gaza are suffering through an
ongoing humanitarian crisis with disastrous effects on all aspects of their lives. In
2017 the United Nations forecast that Gaza would become “unliveable” by 2020,245
pointing to “an ever-deepening water, electricity, health, education and food crisis
resulting from the blockade”.246 According to the most recent data available, in
2021, the conditions on the ground are dire in the extreme: approximately 62.2
percent of Gaza residents are food insecure,247 50 percent are unemployed, and 60
242 United Nations Country Team in the Occupied Palestinian Territories, Gaza Ten Years Later
(July 2017) (hereinafter, “Gaza Ten Years Later”), available at https://tinyurl.com/2sf8tbmd, p.
5.
243 Ibid., p. 7.
244 R. Høvring, “Gaza: The world’s largest open-air prison,” Norwegian Refugee Council (26 Apr.
2018), available at https://tinyurl.com/2xnx4kw6; “Gaza: Israel’s ‘Open-Air Prison’ at 15,” Human
Rights Watch (14 June 2022), available at https://tinyurl.com/5y2njj4x. See also B. Wedeman,
“Analyst: Gaza becomes the biggest open-air prison on earth,” CNN (26 May 2021), available at
https://tinyurl.com/4cus4edv.
245 Gaza Ten Years Later, p. 28. See also United Nations Country Team in the occupied Palestinian
territory, Gaza in 2020: A Liveable Place? (Aug. 2012), available at
https://tinyurl.com/bdr9uy5s.
246 Human Rights Council, Report of the independent international commission of inquiry on the
protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 17.
247 UN World Food Programme, Infographic: Thousands of Palestinians face food insecurity amid
escalating conflict (June 2021), available at https://tinyurl.com/bdzdv6a8.
64
percent live in poverty.248 Meanwhile, rolling electricity blackouts last 11 hours
per day and 78 percent of the available water is unfit for human consumption.249
2.89 The already grim situation is only exacerbated by Israel’s periodic military
assaults, which have killed and wounded thousands, and decimated all forms of
infrastructure.250 In the words of Secretary-General Guterres, “[i]f there is a hell on
earth, it is the lives of children in Gaza”.251
2.90 Israel implements its blockade principally by (i) restricting the movement
of people into and out of Gaza; (ii) restricting the movement of goods into and out
of Gaza; (iii) restricting the provision of electricity to Gaza; and (iv) establishing
land and sea buffer zones within Gaza.
2.91 First, Israel strictly controls the movement of people into and out of the
territory. In order to leave Gaza, Palestinians must obtain a travel permit from the
Israeli authorities.252 Gisha, the Israeli human rights organization, recently
explained that the criteria for granting a permit “are purposefully strict so as to
248 Human Rights Council, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9
May 2022), para. 53. See also Human Rights Council, Report of the independent international
commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc.
A/HRC/40/74 (6 Mar. 2019), para. 17; Gaza Ten Years Later; UNRWA, Occupied Palestinian
Territory emergency appeal 2022 (Jan. 2022), available at https://tinyurl.com/yz65etw6, p. 9.
249 OCHA, Gaza Strip: The Humanitarian Impact of 15 Years of the Blockade (June 2022), available
at https://tinyurl.com/bdfxdpe3.
250 See infra §§ IV(A) and IV(B).
251 “Gaza children living in ‘hell on earth’, UN chief says, urging immediate end to fighting,” UN
News (20 May 2021), available at https://tinyurl.com/4h3su59s.
252 OCHA, Movement in and out of Gaza: update covering September 2022 (17 Oct. 2022),
available at https://tinyurl.com/3z3umrww. See also UNGA, Israeli Practices Affecting the Human
Rights of the Palestinian People in the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/74/468 (2 Oct. 2019) (Dossier No. 860), para. 26. See also Gisha, Access Kit, A guide
to procedures and protocols that regulate access to and from the Gaza Strip (Oct. 2019), available
at https://tinyurl.com/2xbnecrj.
65
deprive the vast majority of the population from even being considered for
travel”.253 Indeed, “even for the few who do meet the criteria, the application
process is a labyrinth of bureaucracy and often leads nowhere”.254
2.92 This has had a dramatic impact on the number of Palestinians able to travel
into and out of Gaza. According to the OCHA, prior to the blockade, “up to half a
million exits of people from Gaza into Israel, primarily workers, were recorded in
a single month”.255 In contrast, “[f]or the first seven years of the blockade, this
number declined to just over 4,000 on average, rising to 10,400 monthly over the
next eight years”.256 Gaza residents are effectively prevented from traveling abroad
through Israel and cannot travel to the rest of the OPT “even when the transit does
not take place via Israeli territory”.257
2.93 There is widespread consensus among UN bodies that these restrictions on
movement cannot be justified by security concerns.258
2.94 Second, Israel strictly controls the movement of goods into and out of Gaza.
Restrictions were particularly draconian early in the blockade between 2007 and
2010, when Israel only allowed goods it defined as “vital for the survival of the
253 Gisha, The Permit Regime: Testimonies (28 July 2022), available at
https://tinyurl.com/4b8cm473 (emphasis added).
254 Ibid.
255 OCHA, Gaza Strip: The Humanitarian Impact of 15 Years of the Blockade (June 2022), available
at https://tinyurl.com/bdfxdpe3, p. 1
256 Ibid.
257 Human Rights Watch, Unwilling or Unable: Israeli Restrictions on Access to and from Gaza for
Human Rights Workers (2 Apr. 2017), available at https://tinyurl.com/5cy9ay3s.
258 See, e.g., HRC, Concluding observations on the fourth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/4 (21 Nov. 2014), para. 12; UN Committee on Economic, Social and Cultural
Rights, Concluding observations on the fourth periodic report of Israel, UN Doc. E/C.12/ISR/CO/4
(12 Nov. 2019), para. 11(c); 2020 CERD Concluding Observations, para. 44.
66
civilian population” to be imported.259 Banned products included such basics as
shoes, paper, coffee, and tea, among others.260 Israel even employed mathematical
formulas to calculate the minimum amount of goods required for survival of the
population and modulated restrictions accordingly.261
2.95 In May 2010, in view of the appalling situation, a flotilla of ships belonging
to international NGOs attempted to deliver humanitarian aid to Gaza.262 As
described in detail in Section IV(B) below, the flotilla was violently intercepted in
international waters by Israeli forces, killing ten civilian passengers. Following this
incident and the ensuing international outcry, Israel moderated its policy of
restricting imports to Gaza to what was necessary for human survival.263 However,
“significant restrictions remained”264 and, as of 2020, “the entry of goods into the
Gaza Strip ha[d] been reduced to only basic humanitarian products”.265 Even the
lone commercial crossing into Gaza, Karm Abu Salem (also known as Kerem
Shalom), is periodically closed by Israeli authorities, thus preventing any goods at
all from entering Gaza for periods lasting from several days to weeks.266
259 Gisha, “Entrance of goods to Gaza via Kerem Shalom” (3 July 2022), available at
https://tinyurl.com/5ctckevc.
260 D. Poort, “History of Israeli blockade on Gaza,” Al Jazeera (2 Nov. 2011), available at
https://tinyurl.com/mr3mbxkn.
261 UNGA, Economic Costs of the Israeli Occupation for the Palestinian people: the Gaza Strip
under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier No. 487), para. 10.
262 Human Rights Council, Report of the international fact-finding mission to investigate violations
of international law, including international humanitarian and human rights law, resulting from
the Israeli attacks on the flotilla of ships carrying humanitarian assistance, UN Doc. A/HRC/15/21
(27 Sept. 2010).
263 Gaza Ten Years Later, p. 8.
264 Ibid.
265 UNGA, Economic Costs of the Israeli Occupation for the Palestinian people: the Gaza Strip
under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier No. 487), para. 1.
266 See OHCHR, Press Release: Closure of Gaza commercial crossing: UN expert calls on Israel
to reverse decision (13 July 2018), available at https://tinyurl.com/mtfrx3y9; “Israeli Authorities
67
2.96 A major component of Israel’s ongoing import restriction policy concerns
so-called “dual-use” goods, i.e., “products and technologies normally used for
civilian purposes, but which may have military applications”.267 Israel conditions
the import of all such goods on a complex permitting process,268 with applications
“subject to frequent rejections or significant delays”.269 This applies to a wide range
of basic goods necessary for normal civilian life, including “civilian machinery,
spare parts, fertilizers, medical equipment, appliances, telecommunication
equipment, metals … construction materials; [and] raw material for the productive
sectors, for example wood and pesticides”.270
2.97 Israel not only restricts imports into Gaza but also prevents exports from
leaving the territory. From 2007 to 2014, Israel imposed a near-total ban on exports
from Gaza, including even agricultural products.271 Although Israel has somewhat
eased the export ban since then, restrictions are often imposed—without
Close Karam Abu Salem Crossing,” Qatar News Agency (13 Dec. 2020), available at
https://tinyurl.com/2rbe2r4c; “Karam Abu Salem crossing re-opened after seven-day closure,” The
Egyptian Gazette (8 Aug. 2022), available at https://tinyurl.com/mvju8x2n.
267 World Bank, Economic Monitoring Report to the Ad hoc Liaison Committee (30 Apr. 2019)
(hereinafter, “World Bank 2019 Report”), available at https://tinyurl.com/2h2z24v7, para. 21;
Gisha, “Entrance of goods to Gaza via Kerem Shalom” (3 July 2022), available at
https://tinyurl.com/5ctckevc.
268 World Bank 2019 Report, para. 26.
269 UNGA, Economic Costs of the Israeli Occupation for the Palestinian people: the Gaza Strip
under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier No. 487), para. 11.
270 Ibid.
271 Euro-Med Human Rights Monitor, A generation under blockade: Consequences of Israel’s 17-
year-blockade of the Gaza Strip (25 Jan. 2023), available at https://tinyurl.com/385aapf2 (“In terms
of exporting agricultural products from the Gaza Strip, Israel imposed a complete ban on the export
of goods from the Strip after tightening its blockade in 2007. This decision reduced the amount of
agricultural production marketed outside the Strip from approximately 3,544 tons per month until
the first half of June 2007 to nearly zero in the subsequent period, exacerbating the Strip’s economic
collapse.”). See also OHCHR, Mandates of the Special Rapporteur on extreme poverty and human
rights and the Special Rapporteur on the right to food (1 Oct. 2013), available at
https://tinyurl.com/ycku35a5.
68
explanation—on basic agricultural products such as fish and tomatoes.272 Even
when agricultural products are allowed to be exported, Israel subjects them to
lengthy inspection periods and enforces arbitrary export criteria, which leave fruit
and vegetables destined for export to rot in hot weather, or at the very least reduce
the shelf life of produce and its desirability to external markets.273
2.98 Third, Israel limits electricity supplies in Gaza. Gaza’s power grid is largely
dependent on electricity supplied from Israel.274 The power Israel supplies to Gaza,
however, is insufficient and irregular.275 Even the one power plant operating in
Gaza periodically experiences fuel shortages and cannot operate at full capacity
because it is dependent on fuel supplies from Israel which are subject to the same
272 For instance, in August 2022, Israel imposed a ban on exporting fish from Gaza to the West
Bank. See Euro-Med Human Rights Monitor, A generation under blockade: Consequences of
Israel’s 17-year-blockade of the Gaza Strip (25 Jan. 2023), available at
https://tinyurl.com/385aapf2. See also OCHA, “Exports from Gaza undermined by the blockade”
(4 July 2017), available at https://tinyurl.com/2b8sv25f. See also “Israel bans Palestinian
agricultural exports via Jordan – PA minister,” Reuters (8 Feb. 2020), available at
https://tinyurl.com/4yzabkn4; OCHA, “New restrictions on the export of fresh tomatoes out of
Gaza: – Mohammed’s story” (3 Nov. 2021), available at https://tinyurl.com/5dszjva8; “Israel bans
fish exports from Gaza to West Bank,” Middle East Monitor (11 Nov. 2022), available at
https://tinyurl.com/y2ju9jsc.
273 OCHA, “New restrictions on the export of fresh tomatoes out of Gaza: – Mohammed’s story” (3
Nov. 2021), available at https://tinyurl.com/44z9skse (“By the time the fresh produce reaches
external markets its quality is compromised, especially during hot weather conditions. … New
restrictions were then imposed, including the demand that the green stem, the sprig, be removed
from every single tomato before exiting Gaza. This negatively impacts on both the quality and shelf
life of the product.”).
274 Human Rights Council, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9
May 2022), para. 16; Gisha, Scale of control: Israel’s Continued Responsibility in the Gaza Strip
(Nov. 2011), available at https://tinyurl.com/3982k26y, pp. 22-23; Gisha, Red Lines Crossed:
Destruction of Gaza’s Infrastructure (Aug. 2009), available at https://tinyurl.com/ynhuxce9, p. 8
(“the power station’s generation capacity is dependent on Israel, because Israel is the only source
for and controls the supply of the industrial diesel that is essential to operate the plant”).
275 OCHA, “Electricity in the Gaza Strip (2023)” (last accessed: 16 July 2023), available at
https://tinyurl.com/36sdr4n4.
69
import controls.276 The net result is that electricity is sometimes available only a
few hours per day.277 In 2021, the International Committee of the Red Cross
(“ICRC”) reported that “80% of Gaza’s population live much of their lives in the
dark, with only 10-12 hours of electricity per day”, “[w]ith electricity supply
reduced to three to four hours a day during peak crisis times”.278
2.99 According to the OCHA, the lack of electricity “has severely affected the
availability of essential services, particularly health, water and sanitation services,
and undermined Gaza’s fragile economy, particularly the manufacturing and
agriculture sectors”.279 For example, in the summer, “wastewater treatment plants
[are] unable to operate”,280 meaning that untreated wastewater is pumped into the
sea, polluting the Gaza shoreline and “contribut[ing] to the faster spreading of
antibiotic-resistant bacteria, which endanger the health of people in Gaza and
beyond”.281
2.100 Fourth, Israel bans access to land and sea areas adjacent to Gaza’s land
borders with Israel, referring to them as “Buffer Zone[s]” or “Access Restricted
276 See OHCHR, Press Release: Closure of Gaza commercial crossing: UN expert calls on Israel
to reverse decision (13 July 2018), available at https://tinyurl.com/mtfrx3y9; “Israeli Authorities
Close Karam Abu Salem Crossing,” Qatar News Agency (13 Dec. 2020), available at
https://tinyurl.com/2rbe2r4c; “Karam Abu Salem crossing re-opened after seven-day closure,” The
Egyptian Gazette (8 Aug. 2022), available at https://tinyurl.com/mvju8x2n.
277 “As Israeli authorities close Erez and Karem Abu Salem crossings, Al Mezan warns of
deteriorating humanitarian conditions in Gaza,” Al Mezan (3 Aug. 2022), available at
https://tinyurl.com/46k2hvnj.
278 “Gaza: ICRC survey shows heavy toll of chronic power shortages on exhausted families,” ICRC
(29 July 2021), available at https://tinyurl.com/ktht3k5u.
279 OCHA, “Electricity in the Gaza Strip (2023)” (last accessed: 16 July 2023), available at
https://tinyurl.com/36sdr4n4.
280 “Gaza: ICRC survey shows heavy toll of chronic power shortages on exhausted families,” ICRC
(29 July 2021), available at https://tinyurl.com/ktht3k5u.
281 Ibid.
70
Areas”.282 As a result, 35 percent of Gaza’s arable land is off-limits to the farmers
who own it.283 Similarly, access to approximately 85 percent of the fishing waters
of Gaza is restricted.284 Under the Oslo Accords, Israel agreed that the area 20
nautical miles offshore Gaza would be a fishing area.285 In practice, however, the
area has most often ranged between three to six nautical miles,286 especially since
the discovery of oil and gas off Gaza’s coast.287 Gaza’s fishermen are also
“subjected to frequent violence, and those deemed by the Israeli navy to have
exceeded the boundaries are arrested, have their boats confiscated and are
sometimes shot at, killed or injured”.288 The buffer zones are depicted a map
produced by OCHA, reproduced in Figure 2.15, following this page.
282 See Human Rights Council, Human rights situation in the Occupied Palestinian Territory,
including East Jerusalem, UN Doc. A/HRC/31/44 (20 Jan. 2016), paras. 41-43 (“The enforcement
measures used by the Israeli authorities against residents living and working in access-restricted
areas significantly undermine the right of Palestinian fishermen and farmers to a livelihood, and
have a devastating impact on the rights to life and to physical and mental health.”).
283 See Euro-Med Human Rights Monitor, Gaza: The Dead-Zone. How life in the Gaza Strip
changed over 14 years of Israel’s strangling blockade (Jan. 2020), available at
https://tinyurl.com/n3y57rvu, p. 30 (“The ‘off-limits’ land represented about 35% of the Gaza’s
land suitable for agriculture. Israeli forces destroyed or contaminated much of this arable land.”).
284 Amnesty International 2022 Report, p. 24.
285 Oslo II, Annex I - Protocol Concerning Redeployment and Security Arrangements, art. XIV.
286 UNGA, Economic Costs of the Israeli Occupation for the Palestinian people: the Gaza Strip
under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier No. 487), para. 7. See
also OCHA, “Gaza’s fisheries: record expansion of fishing limit and relative increase in fish catch;
shooting and detention incidents at sea continue” (Oct. 2019), available at
https://tinyurl.com/zba3tnc4; UNGA, Israeli Practices Affecting the Human Rights of the
Palestinian People in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/74/468 (2 Oct. 2019) (Dossier No. 860), para. 26 (“The Israeli-imposed closures in Gaza,
including unilaterally defined access-restricted areas inside Gaza and at sea, continued to have a
profound impact on the rights of Palestinians in Gaza.”).
287 Amnesty International 2022 Report, p. 28.
288 UNGA, Economic Costs of the Israeli Occupation for the Palestinian people: the Gaza Strip
under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier No. 487), para. 7. See
also OCHA, “Gaza’s fisheries: record expansion of fishing limit and relative increase in fish catch;
shooting and detention incidents at sea continue” (Oct. 2019), available at
https://tinyurl.com/zba3tnc4 (one fisherman, Fadi, recounts: “We are suffering a lot from the Israeli
naval forces … They chase us, use water cannons and open fire towards us and detain us. I have
Figure 2.15
71
2.101 As a result, Gazans face major obstacles to conducting fishing and
agriculture activities, whether for their own subsistence or to earn a living. As noted
by Amnesty International, such drastic restrictions cannot be justified by security
concerns.289 Rather, as explained by the Israeli NGO Gisha, “Israel routinely
imposes and enforces sweeping, arbitrary restrictions for political interests that
have little to do with security”.290
2.102 The cumulative result of the measures described above has been the “near
collapse” of the economy of Gaza.291 In the 11-year period from 2007 to 2018, the
economy grew by a total of only 4.8 percent, despite the population increasing by
nearly one million.292 During that same time period, unemployment increased by
49 percent and poverty by 42 percent.293 In addition to collapsing the economy,
Israel’s blockade, and in particular its dual-use restrictions, also impede the
been detained six times. I can’t remember how many times me and my sons have been injured by
rubber bullets! They’ve confiscated three engines and one small boat, which they still haven’t
returned. As fishermen, the sea should be always open for us, but we are trapped in a restricted
zone.”). See infra §§ IV(A) and IV(B).
289 Amnesty International 2022 Report, p. 145 (“Israel claims that it maintains the ‘buffer zone’ to
ensure the security of its soldiers and citizens. While such security concerns are legitimate and
international humanitarian law authorizes Israel as the occupying power to prohibit or restrict access
to certain areas as a necessary security measure, such measures cannot deprive the occupied
population of their fundamental rights and must ensure their safety and well-being. Israel’s
enforcement of the ‘buffer zone’ does not meet such requirements and often results in violations of
international human rights and humanitarian law.”).
290 Gisha, “Closing in. Life and Death in Gaza’s Access Restricted Areas” (Aug. 2018), available
at https://tinyurl.com/333f8zyx.
291 UNGA, Economic Costs of the Israeli Occupation for the Palestinian people: the Gaza Strip
under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier No. 487), p. 2.
292 Ibid. para. 18.
293 Ibid.
72
provision of public services and the construction and maintenance of
infrastructure.294
2.103 The blockade has also had a “detrimental impact on food security” in
Gaza.295 In 2022, the OCHA reported that over a 30-day period in June 2022,
approximately 63 percent of Palestinians in Gaza (i.e., more than 1.4 million
people) faced moderate to severe food insecurity.296 In starker terms, the same
report indicates that, 75.5 percent of Palestinians in Gaza were “worried about not
having enough food to eat”, 39.7 percent “had to skip a meal” and 15.5 percent
completely “ran out of food”.297
2.104 Public health has similarly suffered. As noted in 2022 by the UN
Independent International Commission of Inquiry on the Occupied Palestinian
Territory, including East Jerusalem, and Israel, “[s]everal United Nations
mechanisms have stressed that the continuing blockade and repeated hostilities,
resulting in the destruction of infrastructure and the deprivation of essential goods
and services, have hindered access to water and sanitation and to the health-care
system in Gaza”.298 Adequate medical care is not available within Gaza due to the
294 World Bank 2019 Report, paras. 30-31. See also “Gaza: Israel’s May Airstrikes on High-Rises:
Apparently Unlawful Attacks Cause Major Lasting Harm,” Human Rights Watch (23 Aug. 2021),
available at https://tinyurl.com/2bp3zsa2 (“These restrictions have sharply reduced the
population’s access to construction material and other goods vital to the rebuilding of Gaza and its
infrastructure. The Israeli military argues that armed groups in Gaza use cement to build tunnels
and estimate that constructing a kilometer of tunnel requires a few hundred tons of cement. But
people in Gaza need over a million tons of cement annually to build and maintain homes, schools,
health clinics, the water system, and other vital infrastructure.”).
295 Amnesty International 2022 Report, p. 171.
296 OCHA, Multi-Sectoral Needs Assessment (July 2022), available at https://tinyurl.com/cyk4ccfr,
p. 2.
297 Ibid.
298 Human Rights Council, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9
May 2022), para. 54.
73
limitations on the import of medical equipment, medication, and other supplies.299
For example, “as of October 2018, almost half of essential medicines were
completely depleted in Gaza”.300
2.105 At the same time, most patients cannot travel abroad for treatment.
According to the WHO, in 2022 alone, Israel failed to timely approve more than
16,000 medical permit applications for travel outside Gaza.301 For cancer patients,
this is especially problematic; the WHO has previously documented “a statistically
significant correlation between the denial or delay of initial [travel] permit
applications and higher patient mortality”.302
2.106 Israel’s blockade has also created a mental health emergency in Gaza.
Children, 85 percent of whom have never known life outside of the blockade, are
particularly severely affected.303 According to Médecins Sans Frontières, “40
percent of young Gazans suffer from mood disorders, 60 to 70 percent suffer from
post-traumatic stress disorder, and 90 percent suffer from other stress-related
299 WHO, Report by the Director-General on Health conditions in the occupied Palestinian
territory, including east Jerusalem, and in the occupied Syrian Golan (17 May 2023), Doc. No.
A/76/15, para. 20. See also WHO, Rights to Health. Barriers to health and attacks on health care
in the occupied Palestinian territory, 2019 to 2021 (2022), available at
https://tinyurl.com/2uhpc95x, pp. 45-48.
300 Human Rights Council, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9
May 2022), para. 54.
301 WHO, Report by the Director-General on Health conditions in the occupied Palestinian
territory, including east Jerusalem, and in the occupied Syrian Golan (17 May 2023), Doc. No.
A/76/15, para. 22.
302 UNGA, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/74/468 (2 Oct. 2019) (Dossier No.
860), para. 29 (citing WHO, Right to Health in the Occupied Palestinian Territory: 2018, available
at https://tinyurl.com/3xtk2kwu, pp. 35 and 43).
303 Save the Children, Trapped: The Impact of 15 Years of Blockade on the Mental Health of Gaza’s
Children, available at https://tinyurl.com/4ufnxeb7, pp. 7, 24.
74
conditions”.304 An alarming 2022 report by Save the Children found that 55 percent
of children in Gaza have contemplated suicide, and 80 percent reported emotional
distress.305
IV. Systematic Violence in the OPT and Excessive Use of Force by Israel
Against Palestinians
2.107 Another key tool Israel uses to control Palestinians in the OPT is the
creation and maintenance of an environment characterized by systematic violence
and use of force against Palestinians. This is not a recent phenomenon. Professor
Khalidi explains that as early as 1923, Zionist Vladimir Jabotinsky “affirmed that
the constant use of massive force against the [Palestinians] would be necessary to
implement th[e] program for ‘transforming’ Palestine into Israel”.306 Israeli
violence, and the spectre of it, have been part of the fabric of life for Palestinians
for decades, since at least the Nakba in 1947-49.307 Among other systematic
practices are Israel’s repeated disproportionate armed attacks on Gaza (Section A),
its violent enforcement of its illegal blockade of Gaza (Section B), its brutal
policing tactics in the West Bank (Section C), and its endorsement of and failure
to prevent or punish Israeli settler violence (Section D).
304 Médecins sans frontières, “In Gaza, lingering trauma is worsening a mental health crisis” (30
June 2021), available at https://tinyurl.com/3fv8uryr. See also UNRWA, Department of Health,
Annual Report 2022, available at https://tinyurl.com/ycksnvn3, p. 31.
305 Save the Children, Trapped: The Impact of 15 Years of Blockade on the Mental Health of Gaza’s
Children, available at https://tinyurl.com/4ufnxeb7, pp. 5, 24.
306 Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023), p. 7. QWS,
Vol. II, Annex 1.
307 See ibid., pp. 26-34.
75
A. ISRAEL’S SYSTEMATIC AND DISPROPORTIONATE MILITARY ATTACKS ON
GAZA
2.108 Following its ostensible “disengagement” from Gaza in 2005 and beginning
in 2006, Israel has carried out numerous violent—indeed, brutal—armed attacks
on Gaza, which have lasted from several days to nearly two months. At the time of
this writing, the United Nations reports that Israeli attacks have killed at least 5,282
Palestinians in Gaza, the majority of whom were undisputedly civilians, including
1,189 children and 581 women.308
2.109 The six most deadly armed attacks were:309
1. December 2008 to January 2009: This attack lasted 22 days and was
code-named “Operation Cast Lead”. Approximately 1,400 Palestinians
were killed, most of whom were civilians, including 339 children.310
Nine Israelis were killed, of whom three were civilians.311
2. November 2012: This attack lasted eight days and was code-named
“Operation Pillar of Defense”. Approximately 170 Palestinians were
308 See OCHA, “Data on casualties” (last accessed: 11 July 2023), available at
https://tinyurl.com/2sdp43zu. The OCHA lists 5,364 Palestinian casualties in the Gaza Strip since
1 January 2008. Of these, 5,317 are listed with “Israeli forces” as the “perpetrator”, and 47 deaths
are attributed to “unknown” perpetrators. 2,788 deaths have been determined to be civilian, with
1,572 listed as “disputed”. Of the 1,206 deaths of children, 1,193 have been attributed to Israeli
forces, with 13 attributed to unknown perpetrators.
309 There have been several other attacks since 2006, including those code-named by Israel as
operation “Summer Rains” (June 2006), operation “Autumn Clouds” (Nov. 2006), operation “Hot
Winter” (Feb. 2008), operation “Returning Echo” (Mar. 2012), and operation “Black Belt” (Nov.
2019), as well as recent attacks in February, April, May, and July 2023.
310 See OCHA, “Data on casualties” (last accessed: 3 July 2023), available at
https://tinyurl.com/2sdp43zu.
311 See ibid.
76
killed, most of whom were civilians, including 36 children.312 Four
Israeli civilians were killed.313
3. July and August 2014: This attack lasted 50 days and was code-named
“Operation Protective Edge”. Approximately 2,250 Palestinians were
killed, most of whom were civilians, including more than 550
children.314 Seventy-three Israelis were killed, of whom six were
civilians.315
4. May 2021: This attack lasted 11 days. Approximately 260 Palestinians
were killed, at least half of whom were civilians, including 67
children.316 Ten civilians were killed in Israel.317
5. August 2022: This attack lasted three days. Approximately 50
Palestinians were killed, the majority of whom were civilians, including
17 children.318 No Israelis were killed.319 Abou Shehadeh, an Israeli
Arab member of Knesset, “referred to th[is] … operation in Gaza as a
‘war crime,’ adding, ‘Every killing without a trial is a crime, and if Jews
carry it out, it doesn’t make it legitimate’”.320
312 See ibid.
313 See OCHA, The Monthly Humanitarian Monitor: Oct.-Nov. 2012 (19 Dec. 2012), available at
https://tinyurl.com/yzh4dev7.
314 See OCHA, “Data on casualties” (last accessed: 3 July 2023), available at
https://tinyurl.com/2sdp43zu. The OCHA data lists 1,694 undisputed civilian deaths caused by
Israeli forces.
315 See OCHA, “Key figures on the 2014 hostilities” (23 June 2015), available at
https://tinyurl.com/2p9umcay.
316 See OHCHR, Statement: Occupied Palestinian Territory (25 Mar. 2022), available at
https://tinyurl.com/y627954h.
317 Ibid.
318 OHCHR, Press Release: Bachelet alarmed by number of Palestinian children killed in latest
escalation, urges accountability (11 Aug. 2022), available at https://tinyurl.com/472tpm7t.
319 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 6.
320 “Israel: Joint List lawmakers condemn Operation ‘Breaking Dawn’,” i24 News (8 Aug. 2022),
available at https://tinyurl.com/c8hxx6jd.
77
6. May 2023: This attack just two months ago lasted five days.
Approximately 34 Palestinians were killed, including at least 12
civilians, among them six children.321 One Israeli civilian was killed.322
2.110 Israel claims its security concerns justify its armed attacks on Gaza. It points
to the firing of rockets and mortars by Palestinian militant groups, which most often
occurs in response to Israel’s violent attacks or provocations in Gaza or the West
Bank.323 Qatar certainly agrees that the indiscriminate firing of rockets into civilian
areas is unlawful.324 Yet these rocket attacks, which primarily consist of shortrange,
“often crude” steel artillery rockets,325 cannot possibly justify Israel’s
disproportionate and excessive use of force against Gaza, still less against its
civilian population. Up to 97 percent of rockets are intercepted by Israel’s Iron
Dome defence system326 and, as shown by the figures cited above, result in
exponentially fewer civilian casualties than those caused by Israel’s armed attacks
321 OCHA, Protection of Civilians Report: 2-15 May 2023 (19 May 2023), available at
https://tinyurl.com/2p95kny9.
322 Ibid.
323 See, e.g., Human Rights Council, Report of the Independent International Commission of Inquiry
on the occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc.
A/HRC/50/21 (9 May 2022), para. 41 (“Armed hostilities broke out again in Gaza in May 2021,
with reports of the recurrence of many of the patterns described above. As noted by the High
Commissioner for Human Rights, the escalation was triggered by protests against the impending
eviction of Palestinian families from their homes in Sheikh Jarrah for the benefit of settlers,
increasing nationalistic and ethnic tensions, and restrictions and the use of force by Israel against
Palestinians in East Jerusalem during Ramadan.”).
324 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 11.
325 A. Taylor & B. Shammas, “Here’s how rockets from Gaza test Israel’s Iron Dome,” Washington
Post (11 May 2023), available at https://tinyurl.com/y8z6a9sm.
326 “Iron Dome at 97% success rate after 580 rockets fired from Gaza since Friday,” Times of Israel
(7 Aug. 2022), available at https://tinyurl.com/34fb93cc. See also Human Rights Council, Human
rights situation in the Occupied Palestinian Territory, including East Jerusalem, and the obligation
to ensure accountability and justice, UN Doc. A/HRC/52/75 (13 Feb. 2023), para. 10.
78
on Gaza. Rather than feeling threatened by rockets, there is a well-documented
pattern of Israelis gathering on nearby hilltops to watch the bombs fall on Gaza.327
Figure 2.16: Israelis gathered on a hilltop outside the town of Sderot on
Monday to watch the bombardment of Gaza, 14 July 2014328
2.111 As stated, Gaza is among the most densely populated territories in the
world.329 The population is tightly packed into urban areas. People are also unable
to leave because of the blockade, as described above. They therefore have no
shelter from Israel’s attacks. Even so, Israel typically deploys massive,
indiscriminate force; it does not exercise restraint by conducting a limited number
of precision strikes directed at legitimate military targets.330
327 R. Mackey, “Israelis Watch Bombs Drop on Gaza From Front-Row Seats,” New York Times (14
July 2014), available at https://tinyurl.com/ymccsvkr.
328 Ibid.
329 See Human Rights Council, Report of the independent international commission of inquiry on
the protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 15.
330 While Israel claims to use “precision strikes”, its aerial bombardment is anything but. See R.
Abdulrahim, “Israel Called Them ‘Precision Strikes’. But Civilian Homes Were Hit Too,” New
York Times (31 May 2023), available at https://tinyurl.com/445ckdk4.
79
2.112 For example, over the course of 51 days in 2014, Israel conducted more
than 6,000331 aerial bombings and launched approximately 50,000 artillery
shells.332 In all, Israel dropped an estimated 21,000 tons of explosives on Gaza.333
During one 24-hour period on 19-20 July, Israel fired 7,000 artillery shells—each
with a “kill radius” of 50 meters—into a single neighbourhood.334 According to
senior United States military officials, this “massive”, “huge” and “absolutely
disproportionate”335 use of force used the same amount of weaponry that would
normally accompany two entire battalions of 40,000 U.S. troops.336
2.113 Over the course of these numerous armed attacks, UN bodies and reputable
human rights organizations have documented hundreds of strikes on residential
buildings killing thousands of civilians, including hundreds of children.337 In many
331 See Human Rights Council, Report of the Independent Commission of Inquiry established
pursuant to Human Rights Council Resolution S-21/2, UN Doc. A/HRC/29/52 (24 June 2015), para.
35.
332 See R. Khalidi, “The Dahiya Doctrine, Proportionality, and War Crimes,” 44(1) JOURNAL OF
PALESTINE STUDIES (2014), available at https://tinyurl.com/tamptyp8 (“During its latest campaign,
stretching over a period of fifty days in July and August of 2014, Israel’s air force launched more
than six thousand air attacks, and its army and navy fired about fifty thousand artillery and tank
shells.”).
333 Ibid.
334 Ibid.
335 Ibid.
336 M. Perry, “Why Israel’s Bombardment of Gaza Neighborhood Left US Officers ‘Stunned,’”
Al Jazeera America (27 Aug. 2014), available at https://tinyurl.com/yt79ecyz.
337 See, e.g., Human Rights Council, Report of the United Nations Fact-Finding Mission on the
Gaza Conflict: Human Rights in Palestine and Other Occupied Arab Territories, UN Doc.
A/HRC/12/48 (25 Sept. 2009), paras. 53, 449; Human Rights Council, Report of the United Nations
High Commissioner for Human Rights on the implementation of Human Rights Council resolutions
S-9/1 and S-12/1, UN Doc. A/HRC/22/35/Add. 1 (4 July 2013), paras. 11-15; Human Rights
Council, Report of the independent commission of inquiry established pursuant to Human Rights
Council resolution S-21/1, UN Doc. A/HRC/29/52 (24 June 2015), paras. 35-56, 59-66; UNGA,
Report of Special Rapporteur S. M. Lynk on the situation of human rights in the Palestinian
Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), paras. 10-12; OCHA,
Protection of Civilians Report: 2-15 August 2022 (19 Aug. 2022), available at
https://tinyurl.com/ypbup36v; UNSC, Meeting Coverage: Recent Deadly Escalation between
Israeli Forces, Palestinian Armed Groups ‘Another Reminder’ of Volatile Situation, Special
80
instances, there are indications that Israeli military forces deliberately targeted
civilians and civilian structures.338 Writing about the 2021 attack, for example,
Amnesty International described instances of Israel “bombing residential buildings
full of civilian families without warning … [with] large explosive weapons, like
aircraft bombs that have a blast radius of many hundreds of meters”.339
Coordinator Tells Security Council, UN Doc. SC/15293 (24 May 2023), available at
https://tinyurl.com/ycxpuurh.
338 See, e.g., “Israel’s Indiscriminate and Disproportionate Attacks on Palestinian Civilians Violates
International Humanitarian law, Indicate War Crimes,” Al-Haq (8 Aug. 2022), available at
https://tinyurl.com/4uwrf4pc; The Euro-Mediterranean Human Rights Monitor, Inescapable Hell:
The Israeli military attack on the Gaza Strip (21 - 10 May, 2021) (May 2021), available at
https://tinyurl.com/jc8s2cyb, pp. 59-60.
339 Amnesty International, Press Release: Israel/ OPT: Pattern of Israeli attacks on residential
homes in Gaza must be investigated as war crimes (17 May 2021), available at
https://tinyurl.com/yc3mhp95.
81
Figure 2.17: Palestinians walk next to the remains of a destroyed 15 story
building after being hit by Israeli airstrikes on Gaza City, 13 May 2021340
340 “AP PHOTOS: Fear and grief grip Gaza anew amid familiar glare,” Associated Press (16 May
2021), available at https://tinyurl.com/yuz43pch.
82
Figure 2.18: Ibrahim Al-Masri, 10, sits for a portrait in his bedroom that was
damaged when an airstrike destroyed the neighbouring building, 26 May
2021341
2.114 Below are three examples of independent investigations finding that Israel
targeted civilians and used disproportionate force causing avoidable civilian
deaths.
2.115 First, as documented by Amnesty International, on 7 August 2022, Israeli
airstrikes killed five children visiting a relative’s grave in the Al-Falluja Cemetery
in northern Gaza; a sixth child was gravely wounded.342
2.116 The father of Nadhmi Abu Karsh, one of the victims, recounted:
Suddenly, we heard the sound of a missile exploding very close to
us. I rushed to the cemetery like almost everyone else in the
341 J. Minchillo, “AP PHOTOS: Shattered rooms show Gaza war’s toll on children,” Associated
Press (1 June 2021), available at https://tinyurl.com/yj5bj5bw.
342 Amnesty International, ‘They Were Just Kids’: Evidence of War Crimes During Israel’s August
2022 Gaza Offensive (25 Oct. 2022), available at https://tinyurl.com/24b3dj4u, p. 12.
83
neighbourhood. People started to collect body parts, carrying
shreds. Parents could not recognize the bodies of their own children.
They did not know if the bits they were holding belonged to their
sons. I was hoping that for some reason Nadhmi would have left the
cemetery before the strike, but I saw pieces of his shoe near his
mother’s grave and knew that he hadn’t.343
2.117 Following its investigation, Amnesty International concluded that there are
“strong indications that the attack on Al-Falluja cemetery was either a direct attack
on civilians or an indiscriminate attack where Israel failed to comply with the
obligation to take all feasible precautions to distinguish between civilians and
fighters”.344
343 Ibid., p. 14.
344 Ibid., p. 3.
84
Figure 2.19: The five children who were killed in the attack on Al-Falluja
cemetery on 7 August 2022: Jamil Ihab Nejem, aged 14 (top left); Nadhmi Abu
Karsh, aged 15 (top right); Hamed Haidar Nejem (left) and Muhammad Salah
Nejem (right), both aged 16 (bottom left); and Jamil Najmiddine Nejem, aged
four (bottom right)345
2.118 Second, as documented by Human Rights Watch, on 16 May 2021, Israel
without warning bombed several neighbouring residential apartment buildings on
Al-Wahda street in the centre of Gaza City. The “25 to 30 strikes” killed 45
Palestinians—“all identified as civilians by OHCHR”, including 18 children and
14 women—and injured dozens more.346 Of those killed, 22 were members of a
single family, the al-Qoulaq family. In the process “at least 35 stores and eight
345 Ibid., p. 13.
346 UNGA, Israeli practices affecting the human rights of the Palestinian people in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/76/333 (20 Sept. 2021) (Dossier No.
862), para. 7 (“In the early hours of 16 May, Israeli security forces hit Al-Wahda Street and its
surroundings, a densely populated area in central Gaza City, with 25 to 30 strikes, killing 45 people
(all identified as civilians by OHCHR)”).
85
multi-storey buildings, as well as the building housing the Gaza Ministry of
Labour, were destroyed”.347
2.119 Following a site visit and investigation, “Human Rights Watch did not find
any evidence of a military target at or near the site of the airstrikes”.348 The UN
Secretary-General likewise stated that “[w]hile Israel claims that many of the
structures were hosting armed groups or being used for military purposes, OHCHR
has not seen evidence in that regard”.349 Moreover, Human Rights Watch
underscored that, even assuming there was a military target in the vicinity, “[t]he
[Israeli] military has also not said why circumstances did not permit providing an
effective advance warning to residents of al-Wahda Street to evacuate their
buildings before the attack”.350
2.120 Third, regarding Israel’s summer 2014 attack on Gaza, a UN Commission
established to investigate the attack examined “15 cases of strikes on residential
buildings across Gaza, in which a total of 216 people were killed, including 115
children and 50 women”.351 The Commission “identified patterns of strikes by
347 Ibid., p. 4 (“In the early hours of 16 May, Israeli security forces hit Al-Wahda Street and its
surroundings, a densely populated area in central Gaza City, with 25 to 30 strikes, killing 45 people
(all identified as civilians by OHCHR)”).
348 Human Rights Watch, “Gaza: Apparent War Crimes During May Fighting” (27 July 2021),
available at https://tinyurl.com/356pcrty.
349 UNGA, Israeli practices affecting the human rights of the Palestinian people in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/76/333 (20 Sept. 2021) (Dossier No.
862), p. 3.
350 Human Rights Watch, “Gaza: Apparent War Crimes During May Fighting” (27 July 2021),
available at https://tinyurl.com/356pcrty.
351 Human Rights Council, Report of the Independent Commission of Inquiry established pursuant
to Human Rights Council Resolution S-21/2, UN Doc. A/HRC/29/52 (24 June 2015), para. 36.
86
Israeli forces on residential buildings”,352 which were conducted at times of day
that would likely lead to extremely high civilian casualties:
The commission found that the fact that precision-guided weapons
were used in all cases indicates that they were directed against
specific targets and resulted in the total or partial destruction of
entire buildings. This finding is corroborated by satellite imagery
analysis. Many of the incidents took place in the evening or at dawn,
when families gathered for iftar and suhhur, the Ramadan meals, or
at night, when people were asleep. The timing of the attacks
increased the likelihood that many people, often entire families,
would be at home. Attacking residential buildings rendered women
particularly vulnerable to death and injury.353
2.121 The Commission further concluded that, in most cases, “there is little or no
information available to explain why residential buildings, which are prima facie
civilian objects immune from attack, were considered to be legitimate military
objectives”.354 Even in those cases where a potential explanation for the airstrikes
could be discerned, “the potential targets were mostly individuals who were or who
could have been present in the building at the time it was hit, presumably on
account of their alleged links to the police, Hamas or an armed group”.355 The
Commission questioned whether these individuals were actually participating
directly in hostilities.356 In any event, the Commission concluded that “there are
strong indications that these attacks could be disproportionate” given “the
residential nature of the targeted buildings; their location in densely populated
352 Ibid.
353 Ibid., para. 37.
354 Ibid., para. 38.
355 Ibid., para. 39.
356 Ibid.
87
areas; the timing of the attacks; and the frequent use of large bombs that were
apparently meant to cause extensive damage”.357
2.122 This well-documented pattern of conduct is characteristic of Israel’s attacks
on Gaza over the past two decades. Indeed, this disproportionate and excessive use
of force is a deliberate policy known as the “Dahiya Doctrine”.358
2.123 Maj. Gen. Gadi Eizenkot is reported to have developed this policy of
disproportionate force when he oversaw Israel’s massive aerial bombardments of
the Dahiya neighbourhood of Beirut during Israel’s 2006 war with Lebanon.
Eizenkot, who later served as deputy chief and then chief of Israel’s military until
2019, first publicly revealed the doctrine to Israeli media in 2008:
What happened in the Dahiya quarter of Beirut in 2006 will happen
in every village from which Israel is fired on … We will apply
disproportionate force on it and cause great damage and
destruction there. From our standpoint, these are not civilian
villages, they are military bases. … This is not a recommendation.
This is a plan. And it has been approved.359
2.124 In addition to killing and maiming thousands of Palestinian civilians, Israel
has destroyed countless homes, businesses, schools, infrastructure, and public
utilities during its repeated armed attacks on Gaza. The sheer scope of destruction
357 Ibid., para. 40.
358 R. Khalidi, “The Dahiya Doctrine, Proportionality, and War Crimes,” 44(1) JOURNAL OF
PALESTINE STUDIES (2014), available at https://tinyurl.com/tamptyp8.
359 See “Israel Warns Hizballah War Would Invite Destruction,” Ynet (3 Oct. 2008), available
at https://tinyurl.com/2tp2auw7. See also Y. London, “The Dahiya Strategy,” Ynet (6 Oct. 2008),
available at https://tinyurl.com/mrymxyy5.
88
from Israel’s attacks defies imagination. In 2014 alone, Israel partly or completely
destroyed 18,000 homes, leaving 100,000 Palestinians homeless.360
Figure 2.20: Palestinians inspect their destroyed homes following overnight
Israeli airstrikes in the town of Beit Hanoun, northern Gaza Strip,
14 May 2021361
2.125 There is a well-documented pattern of Israel targeting schools in Gaza,
which are owned and operated by UNRWA. The UN Board of Inquiry established
to investigate incidents occurring on UN premises in Gaza during the 2014 war
documented numerous incidents of “extensive” and “very significant damage” to
UNRWA schools.362 Since UNRWA schools and UN facilities are often used as
360 OCHA, Occupied Palestinian Territory: Humanitarian Facts and Figures (2017), available at
https://tinyurl.com/3csz3tzy, p. 6.
361 “AP PHOTOS: Fear and grief grip Gaza anew amid familiar glare,” Associated Press (16 May
2021), available at https://tinyurl.com/yuz43pch.
362 UNSC, Letter from the Secretary-General addressed to the President of the Security Council,
UN Doc. S/2015/286 (27 Apr. 2015) (Dossier No. 1368), Annex 1, paras. 40, 46.
89
civilian shelters during Israel’s armed attacks, “at least 44 Palestinians were killed
as a result of Israeli actions and at least 227 injured”.363 The Board documented
one incident on 30 July 2014 in which the Jabalia Elementary Girls School
[W]as hit by a barrage of four 155 mm high-explosive projectiles,
an artillery indirect fire weapon. Between 17 and 18 people were
killed, including an UNRWA staff member and two of his sons …
Ninety-nine residents of the shelter suffered injuries. Very
significant damage was done to the school. … The Board found that
the incident was attributable to the actions of IDF and that no prior
warning had been given by the Government of Israel of the firing of
155 mm high-explosive projectiles on, or in the surrounding area of,
the school.364
363 Ibid., p. 3.
364 Ibid., Annex 1, para. 40.
90
Figure 2.21: Palestinians collect human remains from a classroom inside
Jabaliya school after it was hit by shelling, 30 July 2014365
2.126 In keeping with the “Dahiya Doctrine”, Israel also has a well-documented
pattern of targeting of critical infrastructure. With respect to the 2008-2009 attack
on Gaza, the UN Fact-Finding Mission on the Gaza Conflict found that Israel had
an “overall policy of disproportionate destruction of a significant part of Gaza’s
infrastructure”.366 This included “a deliberate and systematic policy on the part of
the Israeli armed forces to target industrial sites and water installations” and to
engage in the “systematic destruction of food production, water services and
construction industries”.367
365 E. Harris, “Will Israel Charge Soldiers In Gaza Civilian Deaths?,” NPR (16 May 2015), available
at https://tinyurl.com/jmha69k7.
366 Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict,
UN Doc. A/HRC/12/48 (25 Sept. 2009), para. 1027.
367 Ibid., paras. 1026-1027.
91
2.127 In 2006, Israel bombed Gaza’s one power plant (which, as stated, operates
with difficulty on the best of days). As a result, “[t]he power station was put out of
commission, and in one blow, 43% of the Strip’s power supply was cut off”.368
This led to power outages up to 18 hours per day and water supply disruptions
lasting for more than 20 hours per day.369
2.128 In July 2014, Israel again shelled the power plant, shutting it down once
more, thus “curtail[ing] the pumping of water to households and the treatment of
sewage”, and overall worsening the “the humanitarian crisis for the territory’s 1.7
million people”.370 As Human Rights Watch’s deputy Middle East and North
Africa director, pointed out: “If there were one attack that could be predicted to
endanger the health and well-being of the greatest number of people in Gaza,
hitting the territory’s sole electricity plant would be it”.371
368 Gisha, Red Lines Crossed: Destruction of Gaza’s Infrastructure (Aug. 2009), available at
https://tinyurl.com/ynhuxce9, pp. 7-8.
369 See OCHA, “Special Focus: Power Capacity in the Gaza Strip” (14 May 2007), available at
https://tinyurl.com/24jrrp6j, p. 1.
370 “Gaza: Widespread Impact of Power Plant Attack Curtailed Sewage Treatment, Food and Water
Supply, Hospital Operations,” Human Rights Watch (10 Aug. 2014), available at
https://tinyurl.com/4zpadppu.
371 Ibid.
92
Figure 2.22: Smoke and fire rise from the explosion at the Gaza power plant,
29 July 2014372
2.129 Israel has routinely carried out similarly crippling attacks against critical
water infrastructure.373
B. ISRAEL’S VIOLENT ENFORCEMENT OF ITS BLOCKADE OF GAZA
2.130 As described in Section III(B) above, Israel has maintained a land, air and
sea blockade of Gaza for the last 16 years. To enforce that blockade, and aside from
the disproportionate armed attacks discussed above, Israel routinely resorts to
372 A. Greenblatt, “Bombing Ruins Gaza’s Only Power Plant,” NPR (29 July 2014), available at
https://tinyurl.com/y4k2c8ct.
373 See, e.g., N. Murray, “‘Water apartheid’: How Israel weaponises water in the Gaza Strip,” Middle
East Eye (22 Mar. 2023), available at https://tinyurl.com/y3tppay5 (In May 2021, Israel damaged
“13 water wells, three desalination plants and 250,000 meters of water pipes, reportedly including
the main pipeline carrying water purchased from [Israel]”). Water infrastructure was also targeted
in previous attacks on Gaza: “Operation Cast Lead in 2008–9 damaged or destroyed 11 wells and
four reservoirs, along with pumping stations, a sewage treatment plant, 19,920 meters of water
pipes, 2,445 meters of sewage pipes, and sections of the electricity network vital for wastewater
treatment. Operation Protective Edge in 2014 inflicted more damage on wells, water reservoirs,
wastewater treatment plants, desalination plants and pumping stations.” Ibid.
93
deadly force against civilian protestors, humanitarian missions, and Palestinians
attempting to farm their lands or fish their sea.
2.131 One of the most notorious incidents is Israel’s May 2010 attack on an
international NGO flotilla. As stated, given the dire situation in Gaza, the flotilla
was attempting to deliver humanitarian aid to Gaza.374 Israel intercepted it in
international waters and Israeli troops stormed the ships.375 When boarding the lead
ship, the Mavi Marmara, Israeli soldiers opened fire on civilian passengers, who
were either unarmed or crudely armed with sticks or kitchen knives.376 Nine
passengers were killed and 50 were injured, including one who later died in hospital
after being in a coma for four years.377 The UN Fact-Finding Mission appointed to
investigate the incident found that:
The conduct of the Israeli military and other personnel towards the
flotilla passengers was not only disproportionate to the occasion but
demonstrated levels of totally unnecessary and incredible violence.
It betrayed an unacceptable level of brutality. Such conduct cannot
be justified or condoned on security or any other grounds. It
constituted a grave violation of human rights law and international
humanitarian law.378
374 Human Rights Council, Report of the international fact-finding mission to investigate violations
of international law, including international humanitarian and human rights law, resulting from
the Israeli attacks on the flotilla of ships carrying humanitarian assistance, UN Doc. A/HRC/15/21
(27 Sept. 2010).
375 Ibid., para. 114.
376 Ibid., paras. 112-128.
377 Human Rights Council, Report of the international fact-finding mission to investigate violations
of international law, including international humanitarian and human rights law, resulting from
the Israeli attacks on the flotilla of ships carrying humanitarian assistance, UN Doc. A/HRC/15/21
(27 Sept. 2010), para. 117; “Turk injured in Gaza flotilla dies after four-year coma,” Haaretz (24
May 2014), available at https://tinyurl.com/msmud4mf.
378 Human Rights Council, Report of the international fact-finding mission to investigate violations
of international law, including international humanitarian and human rights law, resulting from
94
2.132 Another example of Israel’s disregard for the life of Palestinian civilians is
its response to the 2018-2019 civilian demonstrations against the blockade and
demanding the return of Palestinian refugees displaced from mandatory Palestine
following the 1948 and the 1967 wars,379 known as the “Great March of Return”.
During the demonstrations, thousands of unarmed Palestinians peacefully
approached or entered the “buffer zone” Israel unilaterally established within Gaza.
From the safety of their fortified positions beyond their security barrier, Israeli
soldiers, “mostly [] snipers”, shot over 8,000 Palestinians with live ammunition,
killing 214, virtually all of whom were civilians, including 46 children.380 Israel
killed 60 demonstrators in a single day, on 14 May 2018.381
the Israeli attacks on the flotilla of ships carrying humanitarian assistance, UN Doc. A/HRC/15/21
(27 Sept. 2010), para. 264.
379 See Human Rights Council, Report of the independent international commission of inquiry on
the protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), paras.
14, 18.
380 OCHA, “Two years on: people injured and traumatized during the “Great March of Return” are
still struggling” (6 Apr. 2020), available at https://tinyurl.com/37tvk37a. The figures reported by
OCHA in 2020 represent an increase from those identified by the Commission of Inquiry a year
earlier. See Human Rights Council, Report of the independent international commission of inquiry
on the protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para.
37.
381 Human Rights Council, Report of the independent international commission of inquiry on the
protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 58.
95
Figure 2.23: Israeli snipers at the Great March of Return, 13 April 2018382
2.133 Israel’s security forces claimed to have perceived a new “security threat” in
these demonstrations “as being closely linked with Palestinian armed groups and
an attempt to mask ‘terror activities’”.383 The claim was a lie. The UN Commission
of Inquiry established to investigate the incident concluded that “the
demonstrations were civilian in nature, had clearly stated political aims and, despite
some acts of significant violence, did not constitute combat or a military
campaign”.384
2.134 The OCHA estimated that Israeli forces injured 23,313 Palestinians
repressing the demonstrations, “contributing to the highest toll of injuries recorded
382 H. Glazer, “‘42 Knees in One Day’: Israeli Snipers Open Up About Shooting Gaza Protesters,”
Haaretz (6 May 2020), available at https://tinyurl.com/4z9dcprv.
383 Ibid., para. 29.
384 Ibid., para. 32.
96
in the Occupied Palestinian Territory since 2005”.385 Many were maimed for life.
According to the United Nations, 156 victims had limbs amputated and over 1,200
required or still require specialized limb reconstruction treatment.386 The maiming
of these civilians was no accident. The rules of engagement Israeli authorities
adopted permitted snipers to shoot at the legs of the “major inciters”. One Israeli
soldier admitted that he shot “42 knees in one day”.387
Figure 2.24: In this combination of 10 photos taken on 19 September 2018,
Palestinians shot in the legs during demonstrations at the Gaza strip’s border
with Israel pose as they await treatment at a Gaza City clinic run by MSF
(Doctors Without Borders)388
385 Ibid., para. 38.
386 OCHA, “Two years on: people injured and traumatized during the “Great March of Return” are
still struggling” (6 Apr. 2020), available at https://tinyurl.com/37tvk37a.
387 H. Glazer, “‘42 Knees in One Day’: Israeli Snipers Open up about Shooting Gaza Protesters,”
Haaretz (6 Mar. 2020), available at https://tinyurl.com/mryd5njn.
388 T. Pitman, “In Gaza protests, Israeli troops aim for the legs,” Associated Press (9 Dec. 2018),
available at https://tinyurl.com/4nc5tznj.
97
2.135 The Commission investigated many of these killings and maimings,
including that of a 16-year-old schoolboy who, on 30 March 2018, was shot in the
face by the Israeli forces “as he distributed sandwiches to demonstrators, 300 m
from the separation fence”.389 This teenager permanently lost his hearing. The same
day, another student journalist, Youssef Kronz, was shot in the legs with two bullets
in immediate succession. Kronz was “wearing a blue vest marked ‘Press’ while
photographing the demonstrations approximately 800 m from the separation
fence”.390 His right leg had to be amputated.391 An Israeli sniper also killed Razan
Najjar, a nurse “who at the time was wearing a white paramedic vest and standing
with other volunteer paramedics approximately 110 m from the separation
fence”.392
389 Human Rights Council, Report of the independent international commission of inquiry on the
protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 44.
390 Ibid.
391 Ibid.
392 Ibid., para. 69.
98
Figure 2.25: Palestinian nurse Razan Najjar at the protest site before she was
killed by an Israeli sniper, 2018393
2.136 Even outside the context of protests against the blockade, Israel uses lethal
force to restrict the access of Palestinians civilians to the so-called buffer zones,
covering large swathes of Gaza’s land and sea territory. Israel regularly fires shots
in the direction of Palestinians working in the buffer zones on land and in the sea,
“in some cases directly targeting them”.394 The restrictions on access to the
offshore zones, for example, are “enforce[d] [by] … live ammunition, rubbercoated
bullets and water cannons”.395
393 I. Lee, “Israeli forces kill medic, wound 100 protesters in Gaza unrest, Palestinian ministry says,”
CNN (1 June 2018), available at https://tinyurl.com/4ppap4sa.
394 Human Rights Council, Report of the UN High Commissioner for Human Rights on the
implementation of Human Rights Council resolutions S-9/1 and S-12/1, UN Doc. A/HRC/16/71 (3
Mar. 2011), para. 9.
395 UNGA, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/74/468 (2 Oct. 2019) (Dossier No.
860), para. 26. See also UNGA, Economic Costs of the Israeli Occupation for the Palestinian
people: the Gaza Strip under closure and restrictions, UN Doc. A/75/310 (13 Aug. 2020) (Dossier
No. 487), para. 7 (“People working in the fishing industry are subjected to frequent violence, and
those deemed by the Israeli navy to have exceeded the boundaries are arrested, have their boats
confiscated and are sometimes shot at, killed or injured.”); OCHA, “Gaza’s fisheries: record
99
***
2.137 In addition to subjecting Palestinian residents of Gaza to the gruesome
violence described above, Israel has left them without effective remedies to
compensate for their human suffering or material losses. When it comes to civil
remedies, as explained by the Israeli human rights organization Adalah, the Legal
Center for Arab Minority Rights in Israel, “Israel actively seeks to evade
responsibility for compensating the victims and has placed numerous barriers and
obstacles in their way to receiving legal remedy from the Israeli courts”.396 They
include an unreasonably short statute of limitations, barriers to entering Israel to
pursue legal proceedings against the State or to meet with their attorneys and appear
in court, and high court costs.397
2.138 The Israeli Civil Wrongs Law further impedes the ability of Palestinian
residents of Gaza to obtain remedies. Under that law, residents of “enemy
territory”, including Gaza, are ineligible from receiving compensation from
Israel.398 In July 2022, applying this law, the Israeli Supreme Court “rejected an
appeal demanding that the State of Israel pay tort compensation damages for the
Israeli military’s shooting and serious injury of 15-year-old Palestinian Attiya
expansion of fishing limit and relative increase in fish catch; shooting and detention incidents at sea
continue” (Oct. 2019), available at https://tinyurl.com/3r6ffwx9 (one fisherman, Fadi, recounts:
“We are suffering a lot from the Israeli naval forces … They chase us, use water cannons and open
fire towards us and detain us. I have been detained six times. I can’t remember how many times me
and my sons have been injured by rubber bullets! They’ve confiscated three engines and one small
boat, which they still haven’t returned. As fishermen, the sea should be always open for us, but we
are trapped in a restricted zone.”).
396 F. El-‘Ajou, “Obstacles for Palestinians in Seeking Civil Remedies for Damages before Israeli
Courts,” Adalah (May 2013), available at https://tinyurl.com/bddutu56, p. 1.
397 See ibid.
398 Ibid., p. 10.
100
Nabaheen in November 2014”.399 Describing the lower court ruling that this
decision affirmed, the UN Independent International Commission of Inquiry on the
Protests in the OPT explained that this denies “Gazan victims of violations … the
main avenue to fulfil their right to ‘effective legal remedy’ from Israel that is
guaranteed to them under international law.400 Nor does there appear to be an
“alternative mechanism employed by Israel to compensate Palestinian victims for
damage caused unlawfully by the security forces”.401
C. ISRAEL’S EXCESSIVE USE OF FORCE IN THE WEST BANK (INCLUDING EAST
JERUSALEM)
2.139 In the West Bank (including East Jerusalem), Israeli forces have killed and
injured thousands of Palestinian civilians “often in circumstances suggesting that
the killings were systematic, unlawful and arbitrary, and with near total impunity”
since the start of the occupation in 1967.402 The OHCHR has determined that
“Israeli security forces’ use of lethal force has become a pervasive practice in the
Occupied Palestinian Territory, often employed regardless of the specific level of
gravity of the potential threat detected and often as a first rather than as a last
resort”.403 Last year was the deadliest year in the West Bank since the United
399 “In a most dangerous precedent, Israeli Supreme Court OKs sweeping immunity for the state,
denies all civil remedies to Gaza victims of war crimes,” Adalah (7 July 2022), available at
https://tinyurl.com/55cdtvmf.
400 Human Rights Council, Report of the detailed findings of the independent international
Commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc.
A/HRC/40/CRP.2 (18 Mar. 2019), para. 756.
401 Ibid.
402 Amnesty International 2022 Report, p. 31.
403 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 26.
101
Nations started keeping statistics in 2005. As of 14 December 2022, Israeli forces
had killed 150 Palestinians in the West Bank, including 33 children.404
2.140 Israel’s violence has manifested itself in four principal ways: (i) the killing
of unarmed civilians during routine interactions with Israeli forces; (ii) the
excessive use of force against civilians in the context of protests or other
confrontations; (iii) the excessive use of force in heavily populated civilian areas,
including refugee camps, in the course of nominal security operations; and (iv)
recourse to extrajudicial executions, including targeted assassinations and the
execution of suspected attackers who have been disarmed.
2.141 First, Israeli forces regularly use excessive and lethal force against unarmed
civilians in law enforcement and nominal security operations in which no imminent
threat is actually posed. As the Israel advocacy director at Human Rights Watch
has explained, this is not merely a question of a few “rogue soldiers, but also about
senior Israeli officials who publicly tell security forces to unlawfully shoot to
kill”.405
404 OHCHR, Press Release: Israel: UN experts condemn record year of Israeli violence in the
occupied West Bank (15 Dec. 2022), available at https://tinyurl.com/48jmtsxt.
405 Human Rights Watch, “Israel/Palestine: Some Officials Backing ‘Shoot-to-Kill’” (2 Jan. 2017),
available at https://tinyurl.com/uxt534ch.
102
2.142 Killings and assaults of unarmed civilians regularly occur at checkpoints
and roadblocks, or simply as Palestinians go about their daily lives.406 The victims
often include young children,407 women,408 the elderly409 and the disabled.410
2.143 Merely by way of example, in one instance in July 2021, Israeli soldiers
killed an 11-year-old boy who was “in a car that was slowly driving away from
soldiers when some of them started running after the vehicle and opened fire”.411
In another incident at a temporary checkpoint on 6 April 2021, Israeli forces
“stopped the car of a Palestinian couple, parents of five children, who were driving
home from a medical appointment” and “opened fire at the car when the couple
drove away, resulting in the death of the man and the wounding of his wife”.412
2.144 People with disabilities are disproportionately affected due to Israeli forces’
quick recourse to force against any Palestinian deemed to be behaving suspiciously.
For example, in May 2020, Iyad Hallaq, “a 31-year-old Palestinian with autism,
was shot and killed by Israeli security forces while walking from his home in the
406 UNGA, Report of Special Rapporteur S.M. Lynk on the situation of human rights in the
Palestinian Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), p. 5.
407 See Human Rights Watch, Submission to the United Nations Committee on the Rights of the
Child Review of Israel (Nov. 2022), available at https://tinyurl.com/eh6bzzyd; Defense for Children
International – Palestine, “Israeli forces shoot, kill 14-year-old Palestinian girl near Ramallah” (16
Nov. 2022), available at https://tinyurl.com/286d9yr4 (“Fulla was in the passenger seat of a car
driving on Mahmoud Imwasi street when Israeli forces opened fire on the car, firing at least 20 live
bullets.”).
408 See Human Rights Council, Human rights situation in the Occupied Palestinian Territory,
including East Jerusalem, and the obligation to ensure accountability and justice, UN Doc.
A/HRC/52/75 (13 Feb. 2023), paras. 32-39.
409 See I. Tina, “Violence Against the Elderly: Palestine,” United Nations Population Fund (2019),
available at https://tinyurl.com/yc54sepa, pp. 42-45.
410 See infra para. 2.144.
411 UNGA, Report of Special Rapporteur S.M. Lynk on the situation of human rights in the
Palestinian Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), para. 7.
412 Ibid., para. 14.
103
Wadi al-Jawz neighbourhood to a vocational training centre for persons with
disabilities in Jerusalem’s Old City”.413 In July 2023, an Israeli court acquitted the
responsible officer (“whose name the courts have barred from publication”),
finding that he had made an “honest mistake”.414 The court reached this conclusion
despite independent findings that “the deceased posed no danger to police and
civilians in the area”.415 The undisputed court record reported by the New York
Times is telling:
The officers cornered Mr. al-Hallaq in a trash storage area, where
the officer shot him in his lower body, according to court filings.
Mr. al-Hallaq fell to the ground and the officer’s commander
ordered a halt to the shooting, prosecutors said. Mr. al-Hallaq’s
teacher, who also arrived on the scene, said she shouted in Hebrew
that he was disabled and posed no threat. But after Mr. al-Hallaq
made a movement, the officer fired a second time at Mr. al-Hallaq’s
upper body, killing him as he lay on the ground.416
2.145 As reported by Haaretz, Israeli officials welcomed the acquittal, and the
officer is now being promoted to the rank of commander:
Itamar Ben-Gvir, Israel’s far-right national security minister,
applauded the sentence in a statement, saying that the ‘hero soldiers
who protect the State of Israel with their lives will get a hug and full
backing from me and from the Israeli government.’
413 Human Rights Council, Ensuring accountability and justice for all violations of international
law in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/46/22 (15
Feb. 2021), para. 19.
414 A. Boxerman, “Israeli Court Acquits Police Officer Who Killed Autistic Palestinian Man,” New
York Times (6 July 2023), available at https://tinyurl.com/2s3nubm7.
415 Human Rights Council, Ensuring accountability and justice for all violations of international
law in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/46/22 (15
Feb. 2021), para. 19.
416 A. Boxerman, “Israeli Court Acquits Police Officer Who Killed Autistic Palestinian Man,” New
York Times (6 July 2023), available at https://tinyurl.com/2s3nubm7.
104
The commander of Israel’s Border Police, Amir Cohen, also
welcomed the verdict, saying that the officer will return to border
police and go to a commanders’ course in a few weeks.417
Figure 2.26: Khairi and Rana al-Hallaq, the parents of an autistic Palestinian
man fatally shot by an Israeli police officer, with a photo of their son418
2.146 Similarly, in July 2022, “Israeli security forces shot a 59-year-old man with
severe mental disabilities at Huwwara checkpoint, near Nablus”.419 The unarmed
man was apparently initially shot in the legs by Israeli security forces from a
military tower as he approached the checkpoint.420 According to witnesses, while
417 N. Hasson, “Family of Palestinian Man Killed by Israeli Police Officer Attends Anti-judicial
Coup Protest,” Haaretz (8 July 2023), available at https://tinyurl.com/2p9x33ne.
418 A. Boxerman, “Israeli Court Acquits Police Officer Who Killed Autistic Palestinian Man,” New
York Times (6 July 2023), available at https://tinyurl.com/2s3nubm7.
419 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 21.
420 Ibid.
105
the injured and unarmed man was limping away from the checkpoint, Israeli
security forces arrived in a military jeep and shot him in the upper body several
times from close range, as he did not stop as directed.421
2.147 Those coming to the aid of victims of violence often become victims
themselves. As recounted by the OHCHR, in March 2019, 23-year-old Ahmad
Mansara was “shot multiple times with live ammunition in the chest and shoulders
while helping the family of a Palestinian man, Ala Ghayadeh, who had himself
been shot and seriously wounded by Israeli security forces in the immediate
aftermath of his car breaking down at a junction near the village of El-Hadar, close
to Bethlehem”.422
2.148 As noted by the OPT Special Rapporteur:
The lack of accountability is a systemic and deeply ingrained issue.
It helps to perpetuate a cycle of continued violence, as soldiers
appear to act with impunity, with the message being sent that
Palestinian lives do not matter, while the Palestinian population
becomes both more fearful and more desperate. 423
2.149 Numerous studies have confirmed this culture of impunity. For example,
Amnesty International, in its report, Lethal Force and Accountability for Unlawful
Killings by Israeli Forces in Israel and the Occupied Palestinian Territories,
concluded that Israeli military investigations are neither independent, nor impartial;
and that where there are investigations at all, they lack of independence,
421 Ibid.
422 Human Rights Council, Ensuring accountability and justice for all violations of international
law in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/46/22 (15
Feb. 2021), para. 16.
423 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/71/554 (19 Oct. 2016), para. 17.
106
impartiality, thoroughness and transparency.424 Although Israel has denounced
some of the actions described, it has failed to bring about any real accountability.
This allows a climate of “widespread impunity” to prevail.425 According to the
OHCHR in 2019, “[t]he vast majority of investigations into killings of Palestinians
by Israeli security forces were closed by the Military Advocate General without
further action”.426 In 2021, the OHCHR observed that “[t]he prevailing climate of
impunity described in previous reports of the Secretary-General and the High
Commissioner persisted”.427 The same was noted in 2023.428
2.150 The impunity is glaring, given the human lives that have been devastated
by Israeli conduct. Even killings of the most obviously defenceless—from the
oldest to the youngest—are met with indifference by Israel. Take the example of
the January 2022 death of a 78-year-old Palestinian-American man, Omar
Assad.429 Mr. Assad “was stopped by soldiers while driving home from a friend’s
house, during a routine incursion by the Israeli Army into an area of the West Bank
administered by the Palestinian Authority”.430 He was subsequently detained,
424 Amnesty International, Memorandum: Lethal Force and Accountability for Unlawful Killings
by Israeli Forces in Israel and the Occupied Palestinian Territories (28 Sept. 2016), available at
https://tinyurl.com/8b963kzx.
425 UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), para. 14.
426 Human Rights Council, Ensuring accountability and justice for all violations of international
law in the Occupied Palestinian Territories, Including East Jerusalem, UN Doc. A/HRC/40/43 (14
Mar. 2019), para. 22.
427 Ibid., para. 4.
428 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 5.
429 P. Kingsley & H. Yazbek, “No Charges for Israeli Soldiers in Death of Detained Palestinian
American,” New York Times (14 June 2023), available at https://tinyurl.com/4s8vt2tf.
430 Ibid.
107
gagged and left unconscious in a building site.431 He was later found lying face
down and unresponsive and pronounced dead shortly thereafter.432 In a statement
published in June 2023, the IDF stated that the soldiers involved in the event would
face “disciplinary measures” but because “no causal link was found between the
errors in the conduct of the soldiers and Assad’s death”, no criminal investigation
would be opened.433
2.151 Impunity also prevails for the killer of three-year-old Muhammad Al-
Tamimi. In June 2023, Israeli forces shot the toddler in the head, shortly after his
father had buckled him into his car seat to take him to visit his uncle in the village
of Nabi Saleh.434 His father recounted to CNN:
As soon as I started the car I heard gunshots and I saw the Israeli
soldiers out of the military tower … I looked at Muhammad and
couldn’t believe what I saw. He was shot in the head and there was
blood all over his body. I took him in my arms and then realized that
I’m also shot in my right shoulder.435
2.152 As reported by the Guardian, although there were no hostilities or gunfire
at the time, Israeli officials presented a “shifting narrative” about what happened
to Muhammad:
After initially blaming the wounding of the father and son on
Palestinian crossfire, IDF officials later said that it was not clear
431 Ibid.
432 Ibid.
433 Ibid.
434 B. McKernan, “Three-year-old Palestinian boy shot by Israeli soldiers dies in hospital,” The
Guardian (5 June 2023), available at https://tinyurl.com/569ysvvn.
435 A. Salman & H. Gold, “Palestinian boy, 3, dies of injuries days after being shot by Israeli troops”
CNN (5 June 2023), available at https://tinyurl.com/2b52z4e4.
108
who had shot them and that an investigation had been opened, and
later said that the pair had been injured by Israeli fire.436
2.153 Less than two weeks later, the Israeli military announced that it was closing
its initial investigation, and “said it would reprimand one of the officers involved
in the killing”.437 Muhammad’s father reacted:
Of course we were not expecting justice, but this report feels to us
like a crime on top of the original crime … This is all they have to
say when my son is killed in cold blood, when his life is cut off
before I could discover what kind of person he’d become.438
Figure 2.27: Muhammad Al-Tamimi439
2.154 Second, many killings of Palestinians have occurred “as a result of
demonstrations and clashes between demonstrators and security forces, many of
436 B. McKernan, “Three-year-old Palestinian boy shot by Israeli soldiers dies in hospital,” The
Guardian (5 June 2023), available at https://tinyurl.com/569ysvvn.
437 I. Debre, “Israeli military admits killing Palestinian toddler by mistake, closes initial
investigation,” ABC News (14 June 2023), available at https://tinyurl.com/3z3pf5zc.
438 Ibid.
439 A. Salman, “Palestinian boy, 3, dies of injuries days after being shot by Israeli troops,” CNN (5
June 2023), available at https://tinyurl.com/2b52z4e4.
109
which were held to protest against settlements and settlement expansion”.440 The
Committee against Torture has expressed concern “at allegations of excessive use
of force, including lethal force, by security forces, mostly against Palestinians in
the West Bank, including East Jerusalem … particularly in the context of
demonstrations”.441 The Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression has also reported on Israeli authorities
“dispers[ing] protests using crowd control methods even when these
demonstrations are peaceful”.442
2.155 Similarly, Amnesty International and other human rights organizations
have documented a pattern on Israeli violence against protestors for decades.443 In
2021, Amnesty reported that “Israeli forces have used unnecessary or excessive
force, unlawfully killing hundreds of Palestinian protesters, including children,
440 UNGA, Report of Special Rapporteur S.M. Lynk on the situation of human rights in the
Palestinian Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), p. 4.
441 CAT Committee, Concluding observations on the fifth periodic report of Israel, UN Doc.
CAT/C/ISR/CO/5 (3 June 2016), para. 32.
442 OHCHR, Press Statement: Statement by the UN Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression at the conclusion of his visit to Israel
and the occupied Palestinian territory (18 Dec. 2011), available at https://tinyurl.com/43bsxh2c.
443 See, e.g., Amnesty International, Israel/Occupied Territories and the Palestinian Authority: Five
years after the Oslo Agreement: Human rights sacrificed for security (31 Aug. 1998), available at
https://tinyurl.com/yc46exrh; Amnesty International, Israel and the Occupied Territories:
Excessive use of lethal force (18 Oct. 2000), available at https://tinyurl.com/bdfsjp9m; Amnesty
International, Israel and the Occupied Territories: State assassinations and other unlawful killings
(21 Feb. 2001), available at https://tinyurl.com/mwnvzwrp; Amnesty International, Israel and the
Occupied Territories: Broken lives – A year of intifada (13 Nov. 2001), available at
https://tinyurl.com/4z3v4c64; Amnesty International, Israel and the Occupied Territories and the
Palestinian Authority: Killing the future: Children in the line of fire (20 Nov. 2002), available at
https://tinyurl.com/ysdfs4ae; Amnesty International, Israel and the Occupied Territories: Israel
must put an immediate end to the policy and practice of assassinations (3 July 2003), available at
https://tinyurl.com/4hsufxbc; Amnesty International, Israel and the Occupied Palestinian
Territories: Enduring occupation: Palestinians under siege in the West Bank (4 June 2007),
available at https://tinyurl.com/4azdtds9; Amnesty International, Trigger-Happy: Israel’s Use of
Excessive Force in the West Bank (27 Feb. 2014), available at https://tinyurl.com/u9a99c6y;
Amnesty International, Press Release: One year on from protests, Gaza civilians’ devastating
injuries highlight urgent need for arms embargo on Israel (28 Mar. 2019), available at
https://tinyurl.com/248ubvzb.
110
when there was no imminent threat to life and wounding thousands more often
seriously”.444
2.156 During protests, “demonstrators often resort to low-level violence,
throwing stones and rocks at Israeli soldiers but without posing any serious risk to
them due to the distance and the heavily protected nature of their positions”.445 In
response, Israeli forces use a variety of violent measures against the protesters,
including tear gas, pepper spray, stun grenades (sound bombs) and hand-held
batons. They also often resort to lethal means like firing rubber-coated metal bullets
and even live ammunition at protesters.446 In some cases, Israeli forces “have also
killed or injured demonstrators by firing tear gas directly at them from close range
or by using tear gas in enclosed spaces causing asphyxiation”.447
2.157 In one instance, in the summer of 2021, Israel responded with “repeated,
unwarranted and excessive force” to protests in East Jerusalem calling for a halt to
forced evictions from the neighbourhood of Sheikh Jarrah and an end to the
ongoing forced displacement of Palestinians from East Jerusalem.448 Saleh Higazi,
Deputy Director for the Middle East and North Africa at Amnesty International
stated: “Evidence gathered by Amnesty International reveals a chilling pattern of
Israeli forces using abusive and wanton force against largely peaceful Palestinian
444 Amnesty International 2022 Report, p. 250.
445 Ibid.
446 Ibid.
447 Ibid.
448 Amnesty International, Press Release: Israel/ OPT: End brutal repression of Palestinians
protesting forced displacement in occupied East Jerusalem (10 May 2021), available at
https://tinyurl.com/ye23hnrv.
111
protesters in recent days. Some of those injured in the violence in East Jerusalem
include bystanders or worshippers making Ramadan prayers”.449
2.158 Amnesty International has concluded that the “pattern of unlawful killings
and infliction of serious injuries against Palestinian demonstrators appears to be
aimed at eliminating opposition to Israel’s policies and practices in the OPT”450
and at “stifl[ing] dissent and freedom of expression”.451
2.159 The shooting of stone-throwers, including children, typifies Israel’s routine
recourse to excessive and lethal force in confrontations with Palestinians. Between
November 2021 and October 2022, the OHCHR reported that “nearly half [i.e.,
about 65] of the Palestinians were killed in the context of stone-throwing
confrontations or otherwise during operations of Israeli security forces (i.e.,
without exchange of fire)”.452 For example, “on 9 August, Israeli security forces
killed a 16-year-old boy during stone throwing by Palestinians in Hebron”.453
Eyewitnesses reported that “an Israeli sniper, lying prone on the street, fired several
rounds of live ammunition at stone throwers approximately 70 metres away, hitting
the boy in the chest”.454
449 Ibid.
450 Amnesty International 2022 Report, p. 250.
451 Ibid.
452 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 20.
453 Ibid., para. 24.
454 Ibid.
112
2.160 Third, violence against Palestinians in the West Bank (including East
Jerusalem) often happens in the context of so-called security operations in densely
populated civilian areas.
2.161 The OHCHR reported on the many clashes between Israelis and
Palestinians during Israeli raids against armed Palestinian groups in the cities of
Jenin and Nablus in the period between November 2021 and October 2022.455 Both
Jenin and Nablus are home to large refugee camps. As reported by three UN Special
Rapporteurs, the “Jenin Refugee Camp, often portrayed by Israel as the hotbed of
Palestinian resistance, has been subject to frequent incursions and raids by Israeli
forces, resulting in arbitrary arrests, killings and collective punishment of many
among its 14,000 residents”.456
2.162 According to the OHCHR, during the raids, “[h]eavy troop deployment by
Israeli security forces and their use of heavy weaponry in densely populated areas
exposed Palestinian residents and bystanders, including children, to serious harm
and loss of life”.457 During a January 2023 raid on the Jenin Refugee Camp, for
example, Israeli forces “fired live ammunition, killing at least nine Palestinians,
including one elderly woman and two children”.458 On 19 June 2023, Israeli forces
conducted a similar raid, killing five Palestinians, including a 15-year-old boy, and
455 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, U.N. Doc. A/HRC/52/75
(13 Feb. 2023), para. 17.
456 OHCHR, Press Release: Israel/Palestine: UN experts condemn renewed violence and Israeli
killings of Palestinians in occupied West Bank (27 Jan. 2023), available at
https://tinyurl.com/3cff6jh9.
457 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, U.N. Doc. A/HRC/52/75
(13 Feb. 2023), para. 17.
458 OHCHR, Press Release: Israel/Palestine: UN experts condemn renewed violence and Israeli
killings of Palestinians in occupied West Bank (27 Jan. 2023), available at
https://tinyurl.com/3cff6jh9.
113
wounding 91 other people.459 In the same raid, Israeli forces even deployed an
attack helicopter, which fired into the densely populated city.460
2.163 Similarly, during a raid in Nablus’ old city on 9 August 2022, “Israeli
security forces shot dead two Palestinians—including a 16-year-old boy—and
injured with live ammunition 76 Palestinians, including 15 boys”.461 This took
place “as Israeli security forces in the outer cordon used firearms extensively
against Palestinians throwing stones at Israeli security forces vehicles and seeking
to enter the old city”.462
2.164 Less than a year later, in February 2023, Israel conducted another armed
raid in Nablus. The ostensible goal of the operation was to apprehend three
members of an armed Palestinian group in a safe house but after a fight broke out
with three gunmen there, “chaos and violence spread well beyond the stated targets
and into the busy surrounding streets”.463 As IDF support vehicles entered the city,
they were pelted with stones and oranges, and sometimes fired upon by other
Palestinian gunmen.464 In addition to killing the three men in the safe house and
another gunman, “videos show that Israeli soldiers used deadly force against
unarmed Palestinians, killing at least four people who did not appear to pose a
459 B. Lynfield, “Israeli Forces Launch Helicopter Raid on Jenin in Occupied West Bank,” The
Guardian (19 June 2023), available at https://tinyurl.com/37uxndd9.
460 Ibid.
461 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 20.
462 Ibid.
463 H. Willis et al., “How an Israeli Raid on a Safe House Ended with Civilians Killed,” New York
Times (1 May 2023), available at https://tinyurl.com/yye7238w.
464 Ibid.
114
threat”.465 Videos also show Israeli military vehicles swerving into crowds of
civilians at high speed during the same incident.466
2.165 A reconstruction of the incident by the Washington Post using 3D
modelling software shows that Israeli forces “fired at least 14 times from inside
their armored vehicle as it moved down a street and then came to a halt next to a
short wall behind which the civilians huddled”.467 The report found that Israeli
forces “continued firing even after those people would have been visible from the
vehicle’s windows”.468 According to the Palestinian Health Ministry, 11 people
were killed and over 100 wounded in the incident.469 Among them was a 16-yearold
who was waiting for a ride home after school.470
2.166 Just weeks ago, on 3 July 2023, Israel launched a two-day offensive in the
Jenin refugee camp in the West Bank, allegedly intended to crack down on
Palestinian militants after recent attacks.471 It was “the most intense Israeli military
operation in the occupied West Bank in nearly two decades”.472 Under the guise of
confiscating and destroying weapons, Israel “carried out airstrikes and sent in
hundreds of troops in an operation that was reminiscent of the bloody period two
465 Ibid.
466 Ibid.
467 M. Berger et al., “3D analysis shows how Israeli troops fired into group of civilians,” Washington
Post (10 Mar. 2023), available at https://tinyurl.com/242cv4xn.
468 Ibid.
469 H. Willis et al., “How an Israeli Raid on a Safe House Ended With Civilians Killed,” New York
Times (1 May 2023), available at https://tinyurl.com/yye7238w.
470 M. Berger et al., “3D analysis shows how Israeli troops fired into group of civilians,” Washington
Post (10 Mar. 2023), available at https://tinyurl.com/242cv4xn.
471 M. Harb, “As Israel ends 2-day West Bank offensive, Palestinian residents emerge to scenes of
vast destruction,” Associated Press (5 July 2023), available at https://tinyurl.com/42m4xbp7.
472 Ibid.
115
decades ago known as the second intifada”.473 In one instance, Israeli soldiers
cracked through the wall of an apartment building, jolting the family inside awake.
They then forced all “12 family members into a living room, took away their
phones, zip tied the wrists of the males under age 50 and ordered everyone to stay
silent”.474 The family remained there for about 10 hours, “with soldiers even
standing outside the door when they went to the bathroom”, terrifying a 9-year-old
so much that she vomited repeatedly.475
2.167 The operation had a devastating impact on the people living in the densely
populated camp. Homes were targeted and destroyed, cars were smashed and
scorched, and power lines were downed resulting in outages.476 Videos show
“massive army bulldozers tearing through camp alleys”,477 ripping up more than
two kilometres of roads and cutting off the supply of water to thousands.478
473 Ibid. See also “Israel stages a deadly large-scale raid on Palestinian Jenin camp in the West
Bank,” NPR (3 July 2023), available at https://tinyurl.com/ybah26zk.
474 H. Yazbek & B. Hubbard, “Palestinians, Facing Political Stagnation, Despair After Israeli Raid,”
New York Times (7 July 2023), available at https://tinyurl.com/pzdn8dn2.
475 Ibid.
476 M. Harb, “As Israel ends 2-day West Bank offensive, Palestinian residents emerge to scenes of
vast destruction,” Associated Press (5 July 2023), available at https://tinyurl.com/42m4xbp7.
477 M. Mohammed & I. Isseid, “As Israel Ends Its Largest Raid on the West Bank in 20 Years,
Palestinians Grapple With Destruction (5 July 2023), available at https://tinyurl.com/yy4e9nj9.
478 D. Estrin, “The view from Jenin refugee camp in West Bank after Israel's withdrawal,” NPR (5
July 2023), available at https://tinyurl.com/5bpwmy3f.
116
Figure 2.28: The destroyed streets of the Jenin refugee camp following Israel’s
July 2023 operation479
2.168 Thousands of Palestinians were forced to flee, around one hundred were
injured and 12 were killed, including four children.480 Among them was 16-yearold
Abdul Rahman Hardan, who was shot in the head by an Israeli sniper as he
stood waiting to donate blood outside a hospital in the camp. CCTV footage
obtained by international media outlets shows that he “was unarmed when he was
479 H. Gold & R. Picheta, “Israel ended a huge military operation in Jenin. Here’s what you need to
know,” CNN (5 July 2023), available at https://tinyurl.com/ms78bc7w.
480 M. Harb, “As Israel ends 2-day West Bank offensive, Palestinian residents emerge to scenes of
vast destruction,” Associated Press (5 July 2023), available at https://tinyurl.com/42m4xbp7. See
also A. Sawafta, “Israeli troops withdraw in West Bank, Gaza rockets fired,” Reuters (5 July 2023),
available at https://tinyurl.com/babsycr3; T. Bateman, “Jenin: Palestinian boy killed during Israeli
assault was unarmed – family,” BBC (11 July 2023), available at https://tinyurl.com/2aj27mby.
117
shot” and that “[n]o weapons are visible in the area where the teenager fell nor
elsewhere in the footage”.481
Figure 2.29: Abdul Rahman Hardan before and after he was shot by Israeli
forces, July 2023482
2.169 Israel’s grossly disproportionate use of force is no accident. As Israeli Arab
member of Knesset explained about this attack: the “Jenin operation is part of a
plan to annex parts of the West Bank”.483
2.170 Fourth, Israeli violence against Palestinians in the West Bank (including
East Jerusalem) also manifests itself in the form of extrajudicial executions,
including targeted assassinations. The OHCHR reported a recent example from
October 2022 when “a Palestinian man, reported to be a leader of a loose group of
481 T. Bateman, “Jenin: Palestinian boy killed during Israeli assault was unarmed - family,” BBC
(11 July 2023), available at https://tinyurl.com/2fjcjraj.
482 C. Philip, “Palestinian boy killed by Israeli sniper in Jenin was unarmed, CCTV suggests,” The
Times (9 July 2023), available at https://tinyurl.com/bdheuvpt.
483 C. Keller-Lynn, “Opposition heads back government on Jenin raid but demand retreat on judicial
blitz,” Times of Israel (3 July 2023), available at https://tinyurl.com/bdf9asp2.
118
armed Palestinians in Nablus, was killed when an explosive device attached to a
motorcycle detonated near him in the old city”.484 Although the IDF did not
comment on the explosion, “the modus operandi is consistent with previous Israeli
extrajudicial executions”.485
2.171 The OHCHR also documented several other instances of apparent
extrajudicial executions, “where Israeli security forces used lethal force against
attackers when they were wounded or subdued and no longer presenting imminent
threat, to ‘confirm the kill’”.486 For example, “on 7 March [2022], Israeli security
forces killed a 22-year-old Palestinian man at an Al-Aqsa Compound gate in East
Jerusalem after he stabbed police officers”.487 According to an eyewitness, after an
altercation with an Israeli officer left the man “lying on the ground barely
conscious”, a second officer fired five or six bullets into him.488 A video shows the
484 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 18. See also E. Fabian, “Alleged assassination in Nablus may signal major
Israeli policy change in West Bank,” Times of Israel (23 Oct. 2022), available at
https://tinyurl.com/2bnjhwtj.
485 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 18. See also E. Fabian, “Alleged assassination in Nablus may signal major
Israeli policy change in West Bank,” Times of Israel (23 Oct. 2022), available at
https://tinyurl.com/2bnjhwtj.
486 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 19.
487 Ibid. See also O. Liebermann et al., “Video shows Israeli soldier shooting an attack suspect lying
in street,” CNN (24 Mar. 2023), available at https://tinyurl.com/ydukemsk.
488 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 19.
119
same officer later firing yet another shot at close range at the upper body of the
man.489
2.172 In another example, in March 2016, IDF Sergeant Elor Azaria shot an
incapacitated alleged Palestinian attacker, ‘Abd al-Fatah a-Sharif, in the head. The
incident was captured on a video obtained by B’Tselem:
In video footage captured by Hebron resident ‘Imad Abu
Shamsiyeh, who sent it to B’Tselem, [a-Sharif] is seen lying on the
road injured, with none of the soldiers or medics present giving him
first aid or paying him any attention at all. At a certain point, a
soldier is seen aiming his weapon at a-Sharif and shooting him in
the head from close range, killing him. Although this occurs in the
plain view of other soldiers and officers, they do not seem to take
any notice.490
489 Ibid.
490 B’Tselem, “Video: Soldier executes Palestinian lying injured on ground after the latter stabbed
a soldier in Hebron” (24 Mar. 2016), available at https://tinyurl.com/9jenek3s [WARNING
GRAPHIC].
120
Figure 2.30: Israeli soldier Elor Azaria moments before shooting the wounded
Abd al-Fatah a-Sharif in the head, 24 March 2016491
2.173 While the perpetrator was eventually tried and convicted of manslaughter
in Israel, the OHCHR expressed “grave concern” that “[h]is already lenient initial
sentence of 18 months’ imprisonment … was reduced to 14 months by the Israel
Defense Forces Chief of General Staff”.492 In the end, he was “granted early release
after having served two thirds of his sentence, that is, after nine months”.493
According to the OHCHR, this case is “emblematic of a pattern of killings of
Palestinians who did not pose a threat at the time they were shot, as corroborated
491 M. Zonszein, “VIDEO : Israeli soldier executes unarmed, wounded Palestinian attacker,” +972
Magazine (24 Mar. 2016), available at https://tinyurl.com/yckhk8wf.
492 Human Rights Council, Ensuring accountability and justice for all violations of international
law in the Occupied Palestinian Territories, Including East Jerusalem, UN Doc. A/HRC/40/43 (14
Mar. 2019), para. 21.
493 Ibid.
121
by eyewitnesses and additional evidence, such as video footage, and in which the
perpetrators were known”.494
2.174 In addition to using excessive force against Palestinians, Israeli authorities
have, since the beginning of the occupation, retained the bodies of hundreds of
Palestinians who either died in prison or were killed during security incidents.
According to the Jerusalem Legal Aid & Human Rights Center, Israel keeps “some
in freezers for years at the National Center of Forensic Medicine, or [it] bur[ies]
them in graves with no headstones in what Palestinians call ‘the cemetery of
numbers’”.495
2.175 Israel also uses the corpses of dead Palestinians as “bargaining chips” in
negotiations or potential prisoner swap deals.496 For example, in May 2023, the
New York Times carried a story reporting that Israel’s refusal to return the body of
a prominent prisoner Khader Adnan, who died on a hunger strike, drew renewed
attention to Israel’s practice of “keeping the remains of scores of Palestinians in
freezers and numbered graves, partly as leverage to obtain the bodies of Israelis
held by Palestinian groups”.497 Naftali Bennett, then Minister of Defence and later
Prime Minister, frankly admitted in 2020: “We hoard the bodies of terrorists in
order to hurt and put pressure on the other side”, and we “keep them with us as a
bargaining chip”.498
494 Ibid., para. 22.
495 R. Abdulrahim, “Palestinians Demand Israel Hand Over Body of Prominent Prisoner,” New York
Times (5 May 2023), available at https://tinyurl.com/3yvn3zkk.
496 N. Erakat & R. Eghbariah, “The Jurisprudence of Death: Palestinian Corpses & the Israeli Legal
Process,” Jadaliyya (8 Feb. 2023), available at https://tinyurl.com/55auwhrb.
497 R. Abdulrahim, “Palestinians Demand Israel Hand Over Body of Prominent Prisoner,” New York
Times (5 May 2023), available at https://tinyurl.com/3yvn3zkk.
498 Ibid.
122
2.176 This practice denies Palestinian families the chance to bury their loved
ones, including children, in accordance with their cultural and religious
traditions.499 In the case of Yusuf Abu Jazar, his parents are “still waiting for Israeli
authorities to return [their] son’s remains following a 2018 incident where Israeli
forces seemingly shot and killed Yousef Abu Jazar, then 15 years old”.500 Yet,
“Israeli authorities have not directly informed them of his death, and in the absence
of an official notice from Israeli authorities confirming Yousef was indeed killed,
they cling to the hope that he may still be alive.”501
Figure 2.31: Yousef Abu Jazar, 15, believed to have been killed by Israeli forces
in April 2018502
2.177 Palestinians in the West Bank not only must endure violence from Israeli
forces, they have no hope of accountability. As the Israeli human rights
organization B’Tselem has documented, there is a vanishing chance that the IDF
499 Defense for Children International, “Withheld bodies: No closure for Palestinian families waiting
for their child’s remains” (3 Aug. 2020), available at https://tinyurl.com/2t48b4xp.
500 Ibid.
501 Ibid.
502 Ibid.
123
will hold conduct investigations into situations where “soldiers killed, injured, or
beat Palestinians, used them as human shields, or damaged Palestinian property”503
or that anything will come of such investigations. Of 739 instances of alleged
misconduct from 2000 to 2015, “in a quarter of these cases (182), no investigation
was ever launched, in nearly half (343), the investigation was closed with no further
action, and only in very rare instances (25), were charges brought against the
implicated soldiers”.504 In other words, “the chance of a complaint leading to an
indictment is just roughly 3%”.505 In July 2023, the New York Times reported that
the rate of indictment is even lower in the most recently available statistics,
according to which only “1.2 percent of complaints against officers in 2021 resulted
in criminal indictments”.506
2.178 And when Palestinians attempt to seek civil remedies for these incidents,
there is no “genuine opportunity to file for damages in Israeli courts”.507 B’Tselem
explains that legislation exempting Israel from paying compensation and the
relevant case law in Israeli courts have “almost completely eliminated the
possibility of Palestinians receiving compensation for injury caused them by Israeli
security forces”.508
503 B’Tselem, No Accountability (11 Nov. 2017), available at https://tinyurl.com/6pzj6er6.
504 Ibid.
505 Ibid.
506 A. Boxerman, “Israeli Court Acquits Police Officer Who Killed Autistic Palestinian Man,” New
York Times (6 July 2023), available at https://tinyurl.com/2s3nubm7.
507 B’Tselem, No Accountability (11 Nov. 2017), available at https://tinyurl.com/6pzj6er6.
508 Ibid.
124
D. ISRAEL’S CONDONING OF, AND FAILURE TO PREVENT AND PUNISH,
SETTLER VIOLENCE
2.179 Israeli authorities also tacitly, and sometimes explicitly, condone Jewish
Israeli settler attacks on Palestinians in the West Bank. In the words of the OPT
Special Rapporteur, these attacks “ha[ve] an inescapable impact on Palestinians’
lives in the West Bank, creating a lingering sense of terror and intimidation”.509
The majority of victims of settler violence are children, women and the elderly,
who are “attacked as they performed their daily tasks—walking to school or the
market, grazing their livestock, tending their fields or harvesting their crops”.510 In
certain instances, it has caused whole Palestinian communities to abandon their
homes and flee.511 The OCHA has recorded the role and centrality of settler
violence in the consolidation of settler presence in the OPT and in the subjugation
of the local Palestinian population:
The temporal and geographical proximity between these violent
attacks and takeover of new areas suggests that settler violence
509 UNGA, Report of Special Rapporteur S.M. Lynk on the situation of human rights in the
Palestinian Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), para. 19.
510 See, e.g., OCHA, Unprotected: Israeli settler violence against Palestinian civilians and their
property (Dec. 2008), available at https://tinyurl.com/us82byec (“Approximately half of all
Palestinian injuries from settler violence each year since 2006 have been made up of children,
women, and the elderly over 70 years of age … The majority of settler incidents recorded by OCHA
since 2006 have been undertaken by groups of Israeli settlers against Palestinian civilians as they
performed their daily tasks – walking to school or the market, grazing their livestock, tending their
fields or harvesting their crops. Children as young as eight-years-old and the elderly as old as 95
years have been the targets of attack.”).
511 H. Shezaf, "‘I Left for My Children’: West Bank Palestinian Village Residents Flee Amid
Ongoing Israeli Settler Violence,” Haaretz (24 May 2023), available at https://tinyurl.com/2p9rsjaj
(noting that in May 2023, for example, about 200 residents of Ein Samia in the West Bank “decided
to leave their home, which they have been inhabiting since the 1980s, due to ongoing Israeli settler
violence”).
125
against Palestinians is not random but is often a calculated step
towards settlement expansion.512
2.180 Settler violence has increased in recent years. As reported by the OHCHR,
between 1 November 2021 and 31 October 2022, “settler violence continued
unabated—with 2 Palestinian men killed and 248 injured by settlers—while 2
Palestinian boys were killed either by Israeli security forces or settlers, who both
used firearms simultaneously”.513 In 2021 there were 496 attacks and in 2020 there
were 358.514 Women and girls, in particular, are subjected to harassment and
violent attacks by settler; victims and witnesses report the frequent use of racist and
sexist language by settlers and soldiers.515
2.181 Although Israel is obligated to protect the occupied population, “the
military permits settlers to be armed and rarely intervenes to protect
Palestinians”.516 In fact, Israeli security forces “have been documented standing by
and observing violent attacks by settlers and, on occasion, collaborating with such
attacks”.517 Moreover, when violent incidents are brought to the attention of Israeli
512 OCHA, “The humanitarian impact of de facto settlement expansion: common features,
conclusions and the way forward” (11 Mar. 2017), available at https://tinyurl.com/3sudzn7m.
513 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 4.
514 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 64.
515 Ibid., para. 59.
516 Ibid., para. 64 (citing Y. Kubovich & A. Harel, “Israeli army and police blame each other as
settler violence rages on,” Haaretz (7 Feb. 2022), available at https://tinyurl.com/37ku6k56).
517 Ibid., para. 66.
126
officials, they are very rarely addressed.518 The OHCHR reports that, as a result,
Israeli settlers enjoy “a general sense of lawlessness and impunity”.519
2.182 An episode that occurred in February 2023 in the wake of a Palestinian
gunman’s killing of two Israeli settlers in the northern West Bank is illustrative. In
“one of the most intense episodes of settler-led violence in memory, standing out
even in a year with the deadliest start in the West Bank since 2000”, “[s]ettlers
burned and vandalized at least 200 buildings in four Palestinian villages”.520 In the
village of Huwara, “[h]undreds of settlers, some of them armed with knives and
guns, set ablaze hundreds of cars and homes in the five-hour rampage”.521 The
settlers chanted “death to the Arabs, we want to wipe out Huwara”.522
518 See, e.g., UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in
the Palestinian Territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), p. 7; UNGA,
Report of the Independent International Commission of Inquiry on the Occupied Palestinian
Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), p. 21.
519 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 67.
520 P. Kingsley & I. Kershner, “Revenge Attacks After Killing of Israeli Settlers Leave West Bank
in Turmoil,” New York Times (27 Feb. 2023), available at https://tinyurl.com/y34z57m4.
521 Ibid.
522 G. Mezzofiore et al., “Israel’s military called the settler attack on this Palestinian town a
‘pogrom.’ Videos show soldiers did little to stop it,” CNN (15 June 2023), available at
https://tinyurl.com/2r7dxav7.
127
Figure 2.32: An aerial view shows vehicles torched by Israeli settlers in an
attack on Huwara, 26 February 2023523
2.183 Following a “monthslong CNN investigation, based on analysis of videos
from the scene, exclusive testimony from an Israeli soldier, as well as interviews
with seven eyewitnesses”, the news agency concluded that Israeli forces not only
failed to intervene, but actively intervened to prevent Palestinians from defending
themselves:
CNN found that, not only did the forces fail to stop the riots in
Huwara, they did not protect residents as settlers set fire to
Palestinian homes and businesses and blocked emergency services
from responding. Instead, when residents threw rocks in reaction to
the settlers’ aggression, Israeli forces fired at the Palestinians with
523 G. Mezzofiore, “Israel’s military called the settler attack on this Palestinian town a ‘pogrom.’
Videos show soldiers did little to stop it,” CNN (15 June 2023), available at
https://tinyurl.com/2r7dxav7.
128
tear gas and stun grenades, according to analysis of the footage and
eyewitness accounts.524
2.184 International observers and even one Israeli general have referred to the
incident as a “pogrom”.525 Speaking about the violence, Huwara resident Ammar
Damedi remarked: “This is the tax for living in Palestine”.526
2.185 Rather than condemn the violence, senior Israeli officials explicitly
endorsed it. A few days after the attacks on Huwara, Israel’s Minister of Finance,
Bezalel Smotrich, publicly stated “I think that Huwara needs to be erased”. But this
should not be done by settlers, he clarified: “I think that the State of Israel needs to
do it.”527
V. Discriminatory Application of Military Criminal Law in the West Bank
2.186 In the West Bank, there are two legal systems. One applies to Jewish Israeli
settlers and another to Palestinians. Israeli domestic law applies to Jewish settlers,
who are afforded full rights and protections guaranteed to citizens under domestic
Israeli law.528 For Jewish Israeli settlers, the occupied West Bank is no different
524 G. Mezzofiore et al., “Israel’s military called the settler attack on this Palestinian town a
‘pogrom.’ Videos show soldiers did little to stop it,” CNN (15 June 2023), available at
https://tinyurl.com/2r7dxav7.
525 A. Stroehlein, “Daily Brief: A Pogrom in Palestine,” Human Rights Watch (1 Mar. 2023),
available at https://tinyurl.com/2c34wh64.
526 P. Kingsley & I. Kershner, “Revenge Attacks After Killing of Israeli Settlers Leave West Bank
in Turmoil,” New York Times (27 Feb. 2023), available at https://tinyurl.com/y34z57m4.
527 R. Ayyub & A. Sawafta, “Netanyahu under pressure from US, Israeli protests grow,” Reuters (1
Mar. 2023), available at https://tinyurl.com/2fhv86hw.
528 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 39. See also generally The Association for Civil Rights in Israel, One Rule, Two Legal
Systems: Israel's Regime of Laws in the West Bank (Oct. 2014), available at
https://tinyurl.com/4p3zdcpx.
129
from Israel itself. These same rights, however, are not extended to Palestinians in
the West Bank.529 Instead, they are subject to a distinct system of martial law,
which offers few procedural and substantive protections.530
2.187 Human Rights Watch concluded that the “application of dual bodies of laws
has created a reality where two people live in the same territory, but only one enjoys
robust rights protection”.531 The existence of a dual legal system has been
characterized by the HRC as “institutionalized discrimination against
Palestinians”.532
2.188 The former OPT Special Rapporteur Michael Lynk has highlighted how the
military legal regime affects all facets of Palestinians’ lives:
The lives of the Palestinians in the West Bank are governed by more
than 1800 military orders issued since 1967 by the Commander of
the Israeli Defence Forces, covering such issues as security,
taxation, transportation, land planning and zoning, natural
resources, travel and the administration of justice.533
2.189 The existence of a military criminal justice system exclusively for
Palestinians entails the application to them of a different set of criminal laws and
procedural rights (Section A), permits the widespread practice of administrative
529 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
40.
530 Ibid., para. 41. See also UNGA, Report of the Independent International Commission of Inquiry
on the Occupied Palestinian Territory, including East Jerusalem, and Israel, U.N. Doc. A/77/328
(14 Sept. 2022), p. 15.
531 HRW 2021 Report, p. 86.
532 Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict,
UN Doc. A/HRC/12/48 (15 Sept. 2009), para. 206.
533 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
41.
130
detention (Section B), and allows Israeli authorities to severely curtail Palestinians’
civil and political rights (Section C).
A. THE DISCRIMINATORY MILITARY CRIMINAL LEGAL SYSTEM
2.190 Discrimination pervades “every aspect of the criminal law” Israel applies
to Palestinians in the West Bank.534 Unlike the Israeli law applicable to Jewish
Israeli settlers, “[t]he focus of the military legal system is the regulation of security,
which covers such offences as participating in protests and non-violent civil
disobedience, standard criminal acts, traffic violations, terrorism, membership in
over 400 banned organizations, taking part in political meetings and engaging in
civil society activities”.535
2.191 In addition to being subject to an entirely different set of laws, Palestinians
also face limited fair trial and due process rights as compared to Jewish Israeli
settlers.536 Palestinians face such discrimination from their very first interactions
with the criminal justice system:
• When Palestinians in the West Bank are stopped and searched, none of
the requirements that apply to Israeli settlers (such as obtaining a
warrant for the search) apply;537
534 HRW 2021 Report, p. 86.
535 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
41.
536 See Addameer, In the case of The Palestinian People vs. Military Courts (Mar. 2021), available
at https://tinyurl.com/d4ej7wby; B’Tselem, Presumed Guilty: Remand in Custody by Military
Courts in the West Bank (June 2015), available at https://tinyurl.com/2sk3nnt6.
537 HRW 2021 Report, p. 86.
131
• Once detained, Palestinians can be held for twice as long as Israeli
settlers before they are required to be brought before a judge;538
• Israeli authorities can also “deny Palestinians access to counsel for
twice as long as to settlers”.539
2.192 Those who are brought to trial face a system of military courts that falls
short on nearly every dimension of due process rights.540 Palestinians are deprived
of the right to be tried before an independent and impartial tribunal. The
prosecutors, administrative officers, and, most importantly, judges in the military
courts are all Israeli military officers.541
2.193 Moreover, access to legal counsel is inadequate. Neither the lawyers nor the
detainees are informed of the details of the evidence against them,542 and military
courts “do not provide the legal defense of detainees with the necessary documents
and information to prepare for their defense”.543 Lawyers representing Palestinian
538 Ibid., pp. 86-87.
539 Ibid., p. 87.
540 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 41; Addameer, In the case of The Palestinian People vs. Military Courts (Mar. 2021),
available at https://tinyurl.com/d4ej7wby; B’Tselem, Presumed Guilty: Remand in Custody by
Military Courts in the West Bank (June 2015), available at https://tinyurl.com/2sk3nnt6.
541 See Addameer, “The Israeli Military Court System” (July 2017), available at
https://tinyurl.com/ysjx4pbe.
542 Amnesty International 2022 Report, p. 241.
543 Addameer, In the case of The Palestinian People vs. Military Courts (Mar. 2021), available at
https://tinyurl.com/d4ej7wby, p. 20. See also B’Tselem, Presumed Guilty: Remand in Custody by
Military Courts in the West Bank (June 2015), available at https://tinyurl.com/2sk3nnt6; Human
Rights Watch, Born Without Civil Rights (Dec. 2019), available at https://tinyurl.com/da7scynh.
132
detainees are also regularly subject to movement restrictions and denied permission
to meet with their clients.544
2.194 Trials are also conducted in Hebrew, which many Palestinians do not
speak,545 and the military courts consistently fail to provide professionally trained
interpreters.546
2.195 Unsurprisingly, “the conviction rate is over 99 per cent”.547
2.196 Children are particularly vulnerable under martial law. Israeli civil law
“protects children against nighttime arrests, provides the right to have a parent
present during interrogations, and limits the amount of time children may be
detained before being able to consult a lawyer and to be presented before a
justice”.548 In contrast, “Palestinian children in the West Bank enjoy far fewer
protections”.549 Israeli forces “regularly arrest children during nighttime raids,
interrogate them without a guardian present, and hold those as young as 12 in
lengthy pretrial detention”.550 They are also frequently bound, blindfolded, stripsearched,
subjected to physical violence and verbal abuse, and coerced to sign
544 Addameer, In the case of The Palestinian People vs. Military Courts (Mar. 2021), available at
https://tinyurl.com/d4ej7wby, pp. 19-21.
545 See ibid., pp. 18-19.
546 See ibid., p. 17.
547 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para.
41.
548 HRW 2021 Report, p. 87.
549 Ibid.
550 Ibid.
133
confessions in Hebrew, a language that most Palestinian children do not
understand.551
2.197 The OHCHR reports that
of 80 children detained by Israeli security forces in 2017, 65 per
cent were arrested in night raids, 94 per cent were hand-tied upon
arrest, 78 per cent were blindfolded or hooded following arrest, 65
per cent were subjected to physical abuse, 66 per cent were stripsearched
and 81 per cent were denied access to a lawyer prior to
questioning.552
As reported by the OPT Special Rapporteur in June 2023, 82 percent of children
were interrogated without a parent present, and “[p]arents are rarely informed of
their children’s whereabouts upon arrest”.553
551 Defense for Children International, “Military Detention,” available at
https://tinyurl.com/mrymp8vk.
552 Human Rights Council, Implementation of Human Rights Council resolutions S-9/1 and S-12/1,
UN Doc. A/HRC/40/39 (15 Mar. 2019), para. 33.
553 Human Rights Council, Report of Special Rapporteur F. Albanese on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/53/59 (9 June 2023),
para. 67.
134
Figure 2.33: Israeli forces detain Palestinian Fevzi El-Junidi, 14, following
clashes in the West Bank city Hebron, December 2017554
2.198 Each year, between 500-700 Palestinian children under the age of 18 are
prosecuted in Israeli military courts.555 The most common charge is throwing
stones, a crime that is punishable under military law by up to 20 years in prison, if
committed with “intent to cause injury” and up to 10 years if committed “without
intent to cause injury”.556
554 N. Ahituv, “‘Endless Trip to Hell’: Israel Jails Hundreds of Palestinian Boys a
Year. These Are Their Testimonies,” Haaretz (16 May 2019), available at
https://tinyurl.com/yspfftck.
555 Defense for Children International, “Military Detention” (last accessed: 16 July 2023), available
at https://tinyurl.com/mrymp8vk.
556 Ibid.
135
2.199 The story of one family, recounted by the OHCHR, is illustrative of many
aspects of Israel’s military justice system as applied to children:
[T]hree brothers (15, 14 and 13 years of age) from a village in the
West Bank close to Hallamish settlement were arrested, detained
and ill-treated by Israeli security forces between September 2018
and April 2019. On 1 September 2018, Israeli security forces
arrested the two elder brothers on suspicion of throwing stones.
They were taken, handcuffed and blindfolded on the floor of a
military jeep, to a military outpost inside Hallamish settlement. The
boys reported to OHCHR that, at first, Israeli soldiers kicked them
repeatedly in the abdomen and knees and, afterwards, a group of
young settlers called in by soldiers hit them with sticks. The 14-year
old was detained at Ofer prison and released after 15 days without
being charged. The 15-year old spent four and a half months at Ofer
prison, until he struck a plea bargain for stone-throwing. Having
missed his first school term, he now attends school only
occasionally. On 3 March 2019, Israeli security forces also arrested
their 13-year old brother in the village outskirts. He was detained at
Ofer prison and released after two days without being charged. He
reported that, during his detention, he was shown a picture of his
14-year old brother and asked if he knew him. On 1 April, the 14-
year old brother was reportedly by a water spring when four settlers
grabbed him and brought him to Israeli soldiers, who blindfolded
him and pressured him to admit to stone-throwing, under threat of
his family being harmed and house being destroyed. Only at a later
stage of the interrogation was he allowed to speak to a lawyer by
telephone. He reportedly agreed to sign papers in Hebrew, a
language that he does not understand, in order to bring the
interrogation to an end. On 15 April 2019, after having previously
raided the boy’s house three times, Israeli security forces carried out
a night raid at the house and arrested and detained the 15-year old
brother again. The two elder brothers were released from Ofer
prison on 29 April 2019, after pleading guilty.557
557 UNGA, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/74/468 (2 Oct. 2019) (Dossier No.
860), para. 19.
136
2.200 Another case that garnered international attention was that of 16-year-old
Ahed Tamimi. In December 2017, Ahed was filmed attempting to kick and slap an
Israeli soldier in full military gear in front of her home after she learned that her
15-year-old cousin had been shot in the head by Israeli troops.558 The OHCHR
recounted:
The girl was arrested in the middle of the night and interrogated
without the presence of her parents or lawyer. According to her
lawyer, she was subjected to ill-treatment and threats during
interrogation, and requests by the lawyer to release her on bail
before and during the proceedings were refused. Following closed
hearings, she accepted a plea bargain and was sentenced to eight
months of imprisonment.559
558 “After prison release, Palestinian teen considers law study,” Associated Press (29 July 2018),
available at https://tinyurl.com/2nsnxzd7.
559 Human Rights Council, Implementation of Human Rights Council resolutions S-9/1 and S-12/1,
UN Doc. A/HRC/40/39 (15 Mar. 2019), para. 34.
137
Figure 2.34: Ahed Tamimi, in handcuffs and prison uniform, being escorted
into an Israeli military court, 15 January 2018560
B. ADMINISTRATIVE DETENTION
2.201 One of the most draconian and discriminatory components of the separate
criminal justice system applicable to Palestinians is the practice of “administrative
detention”. This practice allows Palestinians to be detained for security purposes
“without charge or trial based on undisclosed evidence for indefinite periods,
without an opportunity to meaningfully challenge the detention”.561
2.202 Israeli military law provides that, even without the intervention of a judge,
a military commander may authorize the “administrative” detention of a Palestinian
individual not charged with a crime if the commander has reasonable grounds to
560 A. Sawafta, “Palestinian teen on trial for striking Israeli soldier agrees plea deal,” Reuters (21
Mar. 2018), available at https://tinyurl.com/329drvf7.
561 Human Rights Council, Implementation of Human Rights Council resolutions S-9/1 and S-12/1,
UN Doc. A/HRC/40/39 (15 Mar. 2019), para. 32.
138
believe that the individual “must be held in detention for reasons to do with regional
security or public security”.562 Detentions can be indefinitely extended if a military
judge finds that the detention is “justified”,563 proceedings in which, as B’Tselem
explains, “detainees have no real opportunity to mount a reasonable defense”.564 In
contrast, “administrative detention has rarely been used to detain Jewish citizens of
Israel”.565 In order to place Israeli settlers under administrative detention, there
must be “reasonable grounds to presume that the security of the state or public
security require the detention”.566 Additionally, “orders against Israeli settlers (and
other Israeli citizens) must be reviewed within 48 hours by an Israeli civilian judge
in a district court”.567
2.203 According to the OHCHR, as of 31 October 2022, Israel was holding 820
Palestinians in administrative detention without charge or trial—“the highest
number since 2008, and a dramatic increase from the 500 in the previous reporting
562 Israel, Order Regarding Security Directives [Consolidated Version] (Judea and Samaria) (No.
1651), art. 285, available at https://tinyurl.com/bdduwba5. See also Amnesty International 2022
Report, p. 241.
563 B’Tselem, Presumed Guilty: Remand in Custody by Military Courts in the West Bank (June
2015), available at https://tinyurl.com/2sk3nnt6, p. 15.
564 B’Tselem, Administrative Detention (last accessed: 12 July 2023), available at
https://tinyurl.com/ah5r3wjy.
565 Amnesty International 2022 Report, p. 31.
566 Ibid., p. 243.
567 Ibid.
139
period”.568 Among the victims of arbitrary detention and arrest are children as
young as 12.569 Between 500–700 minors are held yearly.570
2.204 Data shows that, “while the vast majority of administrative detainees held
between January 2011 and July 2020 received orders lasting up to a year, many
others were held for up to two years and a minority for over that time”.571 Some
detainees have been held as long as eight years and one, Mazen Natsheh, was
cumulatively held for ten and a half years between 1994 and 2015.572
2.205 Human rights organizations report that when Palestinians are
administratively detained, they are subjected to torture and ill treatment, including
beating and physical assault.573 The Committee against Torture has expressed its
concern at the use of “stress positions and sleep deprivation” in the context of
interrogations.574 Israel has entirely failed to address these concerns. Amnesty
568 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 40.
569 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 59.
570 Ibid.
571 Amnesty International 2022 Report, p. 241.
572 Addameer, Administrative Detention in the Occupied Palestinian Territory: A Legal Analysis
Report (2016), available at https://tinyurl.com/4vd9whjs, p. 31.
573 See HRC, Human rights situation in the Occupied Palestinian Territory, including East
Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75 (13 Feb.
2023), para. 44.
574 CAT, Concluding observations on the fifth periodic report of Israel, UN Doc. CAT/C/ISR/CO/5
(3 June 2016), para. 30 (“The Committee is concerned at allegations of torture and other cruel,
inhuman or degrading treatment or punishment of persons deprived of liberty, including minors.
According to these allegations, torture and ill-treatment are mostly perpetrated by law enforcement
and security officials, mainly from the Israel Security Agency, the police and the Israeli Defence
Forces, particularly during arrest, transfer and interrogation. In addition, the Committee remains
concerned at allegations that Israel Security Agency interrogators continue to resort to interrogation
methods that are contrary to the Convention, such as stress positions and sleep deprivation, and
regrets the lack of clarity about the use of restraints during interrogations.”).
140
International reported that, as of 2017, none of the more than 1,000 torture
complaints filed in the Israeli military court system since 2001 had been
investigated.575
2.206 Evidence collected by Amnesty International and other human rights
organizations shows that Israel does not use administrative detention to genuinely
guard against security threats. Rather, Israel uses it to “detain individuals, including
prisoners of conscience, solely for the non-violent exercise of their right to freedom
of expression and association, and punish them for their views challenging the
policies of the occupation”.576 Put simply, Israel uses administrative detention to
“persecute Palestinians rather than as an extraordinary and selectively used
preventative measure”.577
2.207 The case of Palestinian-French human rights activist Salah Hammouri is
emblematic. Hammouri was arrested on 7 March 2021 and “subsequently placed
under administrative detention for three months, which was extended twice, based
on secret evidence”.578 Shortly after he wrote to the President of France protesting
his detention, Israeli authorities categorized Hammouri as an “extremely dangerous
prisoner”, making him subject to a number of restrictions, including solitary
575 Amnesty International, “Israel’s Occupation: 50 Years of Dispossession” (7 June 2017),
available at https://tinyurl.com/yc6nc7sc.
576 Amnesty International 2022 Report, p. 242. See also Human Rights Council, Human rights
situation in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/37/42
(21 Feb. 2018); Human Rights Watch, Born Without Civil Rights: Israel’s Use of Draconian
Military Orders to Repress Palestinians in the West Bank (Nov. 2019), available at
https://tinyurl.com/da7scynh. See also Amnesty International 2022 Report, p. 241 (“[P]ractice and
evidence have shown that this is a pretext to persecute and deprive people of their fundamental
rights and freedoms because they challenge Israel’s occupation and its policies.”).
577 Amnesty International 2022 Report, p. 241.
578 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/52/75
(13 Feb. 2023), para. 41.
141
confinement.579 In October 2021, seven months after his detention, his East
Jerusalem residency permit was revoked for “breach of allegiance” to Israel.580
More than a year later, Israel deported Hammouri to France against his will.581
2.208 Israel’s practice of administrative detention is routinely and roundly
condemned by United Nations human rights experts and officials, who have
repeatedly called upon Israel “to end the practice of administrative detention and
to ensure that all administrative detainees are promptly charged or released”.582
2.209 Faced with no effective recourse to challenge their administrative
detentions, some Palestinian detainees have resorted to hunger strikes, a step that
has become “a last recourse for resistance against what Palestinians see as unjust
incarcerations”.583 Khader Adnan, a prominent Palestinian prisoner, was
imprisoned by Israel 12 times during his life, often under administrative
detention.584 In 2023, he began a hunger strike to protest his detention.585 He died
in an Israeli prison 87 days later.586
579 Ibid.
580 Ibid.
581 OHCHR, Press Release: Israeli deportation order against French-Palestinian activist Salah
Hammouri could constitute war crime: UN experts (2 Dec. 2022), available at
https://tinyurl.com/4fux4ce6.
582 Human Rights Council, Implementation of Human Rights Council resolutions S-9/1 and S-12/1,
UN Doc. A/HRC/40/39 (15 Mar. 2019), para. 32.
583 “Palestinian prisoner dies in Israel after long hunger strike,” NPR (2 May 2023), available at
https://tinyurl.com/zzkjuynu.
584 OHCHR, Press Release: Israel: UN experts demand accountability for death of Khader Adnan
and mass arbitrary detention of Palestinians (3 May 2023), available at
https://tinyurl.com/5yfmmbkh.
585 R. Abdulrahim, “Palestinian Detainee Dies in Israeli Prison After Hunger Strike,” New York
Times (3 May 2023), available at https://tinyurl.com/bdeyxwty.
586 Ibid.
142
C. RESTRICTIONS ON CIVIL AND POLITICAL RIGHTS
2.210 Israel also uses the discriminatory dual legal system to curtail the civil and
political rights of Palestinians in the West Bank.
2.211 Unlike Jewish Israeli settlers, Israeli citizenship rights are not extended to
Palestinians. As such, they have no voting power to influence the military-legal
system that exerts control over their lives.587
2.212 Moreover, under the military legal system, Palestinians have no freedom of
speech, association, assembly or demonstration. As B’Tselem, the Israeli human
rights organization, explains, Palestinians in the OPT “are not allowed to
demonstrate; many associations have been banned; and almost any political
statement is considered incitement”.588 While settlers enjoy freedom of speech,
“which Israeli law restricts only if there is ‘a near certainty’ that it would ‘seriously
jeopardize’ vital security interests”, Palestinians “can face up to ten years in prison
for attempting to influence public opinion in a manner that ‘may’ harm public peace
or public order”.589
2.213 Military orders also broadly define “security offenses” to include
disturbance of the public order and participation in non-violent protests.590
587 B’Tselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid (12 Jan. 2021), available at https://tinyurl.com/4yzzwvuv, p. 6 (noting that in 2003,
the Israeli Knesset passed an order banning the issuance of Israeli citizenship to West Bank
Palestinians who marry Israeli citizens); The Association for Civil Rights in Israel, One Rule, Two
Legal Systems (Oct. 2014), available at https://tinyurl.com/4p3zdcpx.
588 B’Tselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid (12 Jan. 2021), available at https://tinyurl.com/4yzzwvuv, p. 6.
589 HRW 2021 Report, p. 86.
590 See Addameer, “The Israeli Military Court System” (July 2017), available at
https://tinyurl.com/ysjx4pbe.
143
Palestinians can be jailed for “participating in a gathering of more than ten people
without a permit on an issue ‘that could be construed as political,’ while settlers
can demonstrate without a permit unless it involves more than 50 people, takes
place outdoors and involves ‘political speeches and statements’”.591
VI. Oppression of Cultural and Religious Expression and Identity
2.214 As part of its settler-colonial enterprise, Israel is engaged in an ongoing
effort to erase and supplant Palestinian cultural and religious identity in the OPT.
As explained by the OPT Special Rapporteur, regimes of colonial domination have
long been “achieved through cultural subordination of the natives”, since “any
display of collective identity and (re)claimed sovereignty from the subjugated
people represents a threat to the regime itself”.592 In the case of the OPT, Israel is
pursuing an “endeavour to ‘deconstruct and replace’ Palestine from the collective
imagination through a combination of cultural appropriation and … erasure”.593
2.215 In concrete terms, Israel implements its policy of cultural suppression and
erasure in four main ways: the destruction and reinvention of the cultural and
religious heritage of the OPT (Section A); the placing of restrictions on
Palestinians’ access to religious sites, and their ability to freely worship and
practice their religions (Section B); the restriction and censuring of expressions of
Palestinian cultural identity, including the Palestinian flag, cultural celebrations,
and education on Palestinian history (Section C); and the tolerance of hate speech
591 HRW 2021 Report, p. 86.
592 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), paras. 13, 53.
593 Ibid., para. 54.
144
and incitement targeting Palestinians, creating a climate of fear among Palestinians
practicing their culture and religion (Section D).
A. DESTRUCTION AND REINVENTION OF CULTURAL HERITAGE
2.216 Since the beginning of the occupation in 1967, Israel has engaged in the
destruction, erasure and reinvention of Palestinian cultural heritage in the West
Bank (including East Jerusalem).
2.217 According to Amnesty International, this includes instances in which Israel
has “irreversibly destroyed or damaged numerous Palestinian archaeological” and
cultural heritage sites.594 The OPT Special Rapporteur explains that this practice
can be traced to the very beginning of the occupation, and is directly linked to the
replacement of Palestinian cultural sites with Jewish Israeli ones:
The Moroccan [Mughrabi] Quarter in the Old City of Jerusalem,
destroyed at the beginning of the occupation to make space for the
Wailing Wall esplanade, is one of the first recorded cases of
Palestinian venues destroyed or seized and converted to Israeli
cultural sites soon after June 1967.595
Israel’s destruction of the Mughrabi Quarter involved the “dynamiting and
bulldozing of 135 houses dating from the fourteenth century”.596
594 Amnesty International 2022 Report, p. 192 (note 1060).
595 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 54.
596 Committee on the Exercise of the Inalienable Rights of the Palestinian People, The Status of
Jerusalem (31 Aug. 1997), available at https://tinyurl.com/5xjbn64y, p. 13.
145
Figure 2.35: Israeli Government Press Office aerial picture taken on 12 June
1967 shows the remaining buildings in the Mughrabi Quarter in Jerusalem’s
Old City by the Western Wall and the Al-Aqsa mosque compound following the
Six Day War597
2.218 Indeed, the Old City, located in East Jerusalem, has been a principal target
for Israel’s campaign to remake the culture and character of the OPT. As shown in
the map below, the Old City is home to distinct Muslim, Christian, Jewish and
Armenian quarters, and home to some of the holiest sites for Islam, Christianity
and Judaism.
597 “Fears for remains of Jerusalem’s lost Mughrabi quarter,” France 24 (12 Feb. 2023), available
at https://tinyurl.com/yzajz7zv.
146
Figure 2.36: The Old City of Jerusalem and its Quarters598
2.219 Rather than respecting its multicultural and multi-religious character, Israel
continues to put its non-Jewish heritage at risk. Beginning in 1968, Israel has
excavated a tunnel along the western wall of al-Haram al-Sharif (also known as the
al-Aqsa Mosque compound or the Temple Mount) to allow access to additional
portions of the western wall either hidden underground or behind the buildings of
the Muslim Quarter.599 This has given rise to “serious fears for the stability of the
598 Ibid.
599 Committee on the Exercise of the Inalienable Rights of the Palestinian People, The Status of
Jerusalem (31 Aug. 1997), available at https://tinyurl.com/5xjbn64y, p. 16. See also M. Fischel,
“Excavating Jerusalem’s Ancient Secrets at the City of David,” ISRAEL21c (1 Sept. 2022),
available at https://tinyurl.com/5d73vpnf.
147
Islamic monuments [i.e., al-Haram al-Sharif], particularly following the
appearance of cracks in the walls and the partial collapse of some of the
buildings”.600 As recently as June 2022, the Director-General of the Jerusalem
Waqf, an organ of Jordan that administers the al-Haram al-Sharif, “warned that the
mosque could be in danger of collapse if the digging continued at its current
intensity”.601
2.220 These and other excavations have been condemned by numerous UN
bodies. As far back as 1981, the UN General Assembly determined that the
excavations “seriously endanger the historical, cultural and religious sites of
Jerusalem”.602 The UN Educational, Scientific and Cultural Organization
(“UNESCO”) has issued similar condemnations on dozens of occasions.603 Most
recently, in May 2023, the UNESCO Executive Board expressed its regret at “the
failure of the Israeli occupying authorities to cease the persistent excavations,
tunneling, works and projects in East Jerusalem, particularly in and around the Old
City of Jerusalem”.604 Despite repeated efforts, Israeli authorities have refused to
600 Committee on the Exercise of the Inalienable Rights of the Palestinian People, The Status of
Jerusalem (31 Aug. 1997), available at https://tinyurl.com/5xjbn64y, p. 16.
601 M. Najib, “Jerusalem’s Al-Aqsa Mosque ‘in danger of collapsing’ due to Israeli excavation
work: Site official,” Arab News (24 June 2022), available at https://tinyurl.com/bddz4hb7. See also
“Israeli excavations and blocking of restoration eat away at the fabric of Al-Aqsa Mosque,” Middle
East Monitor (23 Feb. 2023), available at https://tinyurl.com/2ubrs8hp.
602 UNGA, Resolution 36/15, Recent developments in connection with excavations in eastern
Jerusalem, UN Doc. A/RES/36/15 (28 Oct. 1981) (Dossier No. 614), Preamble.
603 UNESCO, Decision adopted by the Executive Board of UNESCO at its 216th Session (10-24
May 2023) (hereinafter, “UNESCO 2023 Board Decision”) available at
https://tinyurl.com/38sjejy3, p. 42, para. 7 (“recalling the twenty-three decisions of the Executive
Board … and the eleven World Heritage Committee Decisions”).
604 UNESCO 2023 Board Decision, p. 42, para. 8.
148
permit the establishment of a UNESCO monitoring mechanism in East
Jerusalem.605
2.221 Similar excavations, construction works, and alterations threaten other
Palestinian sites in the West Bank, affecting the “authenticity and integrity” of the
sites, and their “original character”.606 Currently, four cultural heritage sites in the
OPT are listed on UNESCO’s list of World Heritage in Danger, including in
Jerusalem and Hebron.607 In Hebron, for example, the Ibrahimi Mosque has been
partially converted into a synagogue,608 with the Wall encircling the site.609
2.222 As the UN Fact-Finding Mission on Israeli Settlements in the OPT has
observed, “policies and acts aimed at altering the composition of Jerusalem and
Hebron by erasing cultural heritage on the basis of religious affiliation … are being
carried out with the involvement of the Government of Israel, with pernicious
effects”.610
2.223 Other instances of destruction of Palestinian cultural and religious sites
have occurred in the course of Israel’s security operations and armed attacks. For
605 Ibid., p. 42, para. 9.
606 Ibid., p. 43, paras. 14-15.
607 UNESCO World Heritage Committee, “State of conservation of the properties inscribed on the
List of World Heritage in Danger,” UNESDOC WHC/21/44.COM/7A.Add.2 (12 July 2021), pp. 2,
6, 9. The sites are: the Old City of Jerusalem and its Walls, the Al-Haram Al-Ibrahimi / Tomb of
the Patriarchs in Hebron, and Palestine: Land of Olives and Vines (Cultural Landscape of Southern
Jerusalem).
608 See, e.g., OHCHR, Press Release: Israel: UN expert condemns brutal attacks on Palestinians at
Al-Aqsa Mosque (6 Apr. 2023), available at https://tinyurl.com/pwu2xk6s.
609 UNESCO 2023 Board Decision, p. 43, paras. 14-15.
610 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 61.
149
example, Israel “enforced the siege of the Church of the Nativity in Bethlehem in
2004, destroying parts of the Church”.611 Reports have also documented extensive
destruction of cultural and religious sites during Israel’s armed attacks on Gaza.612
In its May 2021 attack on Gaza alone, Israel damaged or destroyed “124 places of
worship,” including churches and mosques, as well as archaeological sites and
ruins.613
2.224 In addition to the outright destruction and replacement of heritage, Amnesty
International reports that “Israeli authorities found and excavated 980
archaeological sites” in the West Bank, “including 349 in East Jerusalem, between
1967 and 2007”.614 These excavations, carried out without the consent of the
Palestinian population of the OPT, are often promoted by Israeli authorities in order
to “reinforce the connection between the ‘Land of Israel’” and the OPT, with a
focus on “sites support[ing] Israeli / Jewish cultural heritage in the West Bank” and
an “over-emphasis of biblical archaeology, while entrenching the underrepresentation
of Muslim and other heritage”.615
611 Amnesty International 2022 Report, p. 192 (note 1060).
612 Al-Haq, Cultural Apartheid: Israel’s Erasure of Palestinian Heritage in Gaza (Jan. 2022),
available at https://tinyurl.com/54cnc9cx.
613 Ibid., pp. 10-11.
614 Amnesty International 2022 Report, pp. 191-192.
615 Diakonia International Humanitarian Law Resource Centre, Occupation Remains: A Legal
Analysis of Israeli Archeology Policies in the West Bank: An International Law Perspective (Dec.
2015), available at https://tinyurl.com/4wby4n3n, p. 29. See also Human Rights Council, Report of
the independent international fact-finding mission to investigate the implications of the Israeli
settlements on the civil, political, economic, social and cultural rights of the Palestinian people
throughout the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/22/63
(7 Feb. 2013), para. 59 (“It has been alleged that these archaeological excavations are intended to
emphasize Jewish cultural heritage while disregarding – or worse undermining – the rich heritage
of other cultures that have contributed to the millenary history of the city.”).
150
B. RESTRICTIONS ON ACCESS TO RELIGIOUS SITES AND ABILITY TO WORSHIP
2.225 Israel has regularly impeded and restricted Muslim and Christian
worshippers’ ability to access holy sites in Jerusalem, despite having recognized
the binding nature of “specific guarantees of access to the Christian, Jewish and
Islamic Holy Places”. 616
2.226 According to the UN Special Rapporteur on freedom of religion or belief,
as a result of the “elaborate system” restricting the movement of Palestinians in the
OPT, “millions of Muslims and Christians have reportedly been impeded since
1993 from worshipping at some of the sites they consider to be their most holy
places in the world, especially in Jerusalem”.617
2.227 Since the beginning of the occupation in 1967, for example, Israel has
regularly entirely or partially prohibited Muslims from worshipping at al-Haram
al-Sharif.618 Although the Jerusalem Waqf administers al-Haram al-Sharif and
other Islamic holy places,619 Israel is in effective control of access to them.620
Israeli authorities frequently limit access to the site to Muslims over a certain age,
616 Wall Advisory Opinion, para. 129. See General Armistice Agreement between Israel and Jordan
(3 Apr. 1949) (hereinafter, “Israel-Jordan General Armistice”), available at
https://tinyurl.com/mrfshwjx, art. VIII(2) (recognizing that “agreement in principle already exists
… [on] free access to the Holy Places”); Treaty of Peace Between the State of Israel and the
Hashemite Kingdom of Jordan (26 Oct. 1994) (hereinafter, “Israel-Jordan Peace Treaty”),
available at https://tinyurl.com/yc2uc4ve, art. 9(1) (expressly obliging Israel to “provide freedom
of access to places of religious and historical significance”).
617 Human Rights Council, Report of Special Rapporteur A. Jahangir on freedom of religion or
belief, UN Doc. A/HRC/10/8/Add.2 (12 Jan. 2009), para. 26.
618 Committee on the Exercise of the Inalienable Rights of the Palestinian People, The Status of
Jerusalem (31 Aug. 1997), available at https://tinyurl.com/5xjbn64y, p. 17.
619 Ibid., p. 16.
620 Ibid.
151
especially during religiously significant times such as the Muslim holy month of
Ramadan.621
2.228 Israel has done the same with Christian holy sites. In 2022 and 2023, for
example, Israel restricted Christians’ access to the Holy Light Ceremony in the
Church of Holy Sepulchre, one of the most important Orthodox Christian
ceremonies.622
2.229 Some holy sites of importance to all three monotheistic faiths are open only
to Jews, such as the World Heritage Site of Bilal Ibn Rabah Mosque / Rachel’s
Tomb in Bethlehem, where UNESCO has condemned “the strict ban on access of
Palestinian Christian and Muslim worshippers”.623
2.230 These restrictions on access to holy sites are often enforced with “excessive
force”.624 During Ramadan, in April 2023, according to the OPT Special
Rapporteur, “Israeli forces violently entered Al-Aqsa Mosque, used stun grenades
and tear gas, fired sponge-tipped bullets, and indiscriminately beat Muslim
621 See, e.g., Human Rights Council, Report of Special Rapporteur A. Jahangir on freedom of
religion or belief, UN Doc. A/HRC/10/8/Add.2 (12 Jan. 2009), para. 28; “Tension Overshadows
Ramadan Prayers in Jerusalem,” VOA (27 Oct. 2009), available at https://tinyurl.com/35dyunf6;
UN Division for Palestinian Rights, “Chronological Review of Events Relating to the Question of
Palestine” (31 July 2011), available at https://tinyurl.com/mpjdmeb5, para. 1 (“Israeli police limited
access to the Al-Aqsa and Dome of the Rock Mosques in Jerusalem for Muslim men under the age
of 45 as a precautionary measure, a spokeswoman said.”); “Al-Aqsa: Israel bars Muslim men under
50 amid protests,” Al Jazeera (21 July 2017), available at https://tinyurl.com/m83bjvct.
622 A. Horowitz & L. Kellman, “Church: Israel limiting rights of ‘Holy Fire’ worshippers,”
Associated Press (12 Apr. 2023), available at https://tinyurl.com/36phzbf9; “Holy Fire celebrated
by Christians in Jerusalem amid Israeli police restrictions,” BBC (15 Apr. 2023), available at
https://tinyurl.com/298wtbfe; J. Krauss, “Israeli restrictions on ‘Holy Fire’ ceremony ignite
Christian outrage,” Los Angeles Times (23 Apr. 2022), available at https://tinyurl.com/ymc33x57.
623 UNESCO 2023 Board Decision, p. 43, para. 15.
624 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on the legal status of
the settlements, UN Doc. A/HRC/47/57 (29 July 2021), para. 7.
152
worshippers—including elderly people and women—with batons and rifle butts.
At least 450 Palestinian men were reportedly arrested, and some were kicked and
slapped by escorting soldiers as they were led out of the Haram Al-Sharif
compound in handcuffs”.625 Also in April 2023, during the Orthodox Christian
Holy Week, Israeli police violently enforced access restrictions to the Church of
the Holy Sepulchre. As reported by Haaretz: “Footage showed Israeli police
dragging and beating several worshippers, thrusting a Coptic Priest against the
stone wall and tackling one woman to the ground.”626
2.231 In addition to perpetrating violence directly against worshippers, Israel fails
to prevent and punish violence by Jewish Israeli settlers against Christians and
Muslims, their holy sites, and their property. The UN Fact-Finding Mission on
Israeli Settlements in the OPT reported in 2013 that “since 2008, mosques and
Christian churches have been targeted … including at least nine … arson attacks
against Palestinian mosques and 21 incidents where graffiti was used to desecrate
mosques, churches and burial grounds with provocative slogans of a racist or a
sacrilegious nature, intended to inflame the situation”.627 According to the
Associated Press, “2023 is shaping up to be the worst year for Christians [in
Jerusalem] in a decade”.628 There have been “at least seven serious cases of
625 OHCHR, Press release: Israel: UN expert condemns brutal attacks on Palestinians at Al-Aqsa
Mosque (6 Apr. 2023), available at https://tinyurl.com/22c5pxet. See also “Israel/OPT: Second
night of horror at al-Aqsa mosque,” Amnesty International (6 Apr. 2023), available at
https://tinyurl.com/2s3ntskz.
626 N. Hasson, “Israeli Police Violently Beat Several Holy Fire Worshippers Trying to Defy
Capacity Limits,” Haaretz (15 Apr. 2023), available at https://tinyurl.com/mv6kjdrb.
627 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 60.
628 I. Debre, “Holy Land Christians say attacks rising in far-right Israel,” Associated Press (13 Apr.
2023), available at https://tinyurl.com/s4zxtxfy.
153
vandalism of church properties from January to mid-March – a sharp increase from
six anti-Christian cases recorded in all of 2022.”629 By way of example:
In March, a pair of Israelis burst into the basilica beside the Garden
of Gethsemane, where the Virgin Mary is said to have been buried.
They pounced on a priest with a metal rod before being arrested.
In February, a religious American Jew yanked a 10-foot rendering
of Christ from its pedestal and smashed it onto the floor, striking its
face with a hammer a dozen times at the Church of the Flagellation
on the Via Dolorosa, along which it’s believed Jesus hauled his
cross toward his crucifixion. ‘No idols in the holy city of
Jerusalem!’ he yelled.
Armenians found hateful graffiti on the walls of their convent.
Priests of all denominations say they’ve been stalked, spat on and
beaten during their walks to church. In January, religious Jews
knocked over and vandalized 30 graves marked with stone crosses
at a historic Christian cemetery in the city.630
C. RESTRICTING AND CENSURING EXPRESSIONS OF
PALESTINIAN CULTURAL IDENTITY
2.232 Israeli policies and practices ban or suppress symbols and manifestations of
Palestinian culture, history and identity.
2.233 Israel has, for example, banned Palestinian textbooks and closed Palestinian
schools for teaching Palestinian history. As observed by the UN Special Rapporteur
on freedom of expression, “sections of textbooks used in Palestinian schools have
been censored by the Israeli Ministry of Education”.631 Similarly, the OPT Special
629 Ibid.
630 Ibid.
631 Human Rights Council, Report of Special Rapporteur F. La Rue on the promotion and protection
of the right to freedom of opinion and expression, UN Doc. A/HRC/20/17/Add.2 (11 June 2012),
para. 93.
154
Rapporteur noted that “attempts to erase the Palestinian character of what is left of
Palestinian ancestral land include: the elimination of Palestinian history in East
Jerusalem schools” and “the revocation of licences to Palestinian schools not
adhering to Israeli curriculum policies”.632
2.234 Israel also bans and prohibits Palestinian cultural gatherings, events and
organizations.633 The UN Secretary-General found in 2019 that “[i]n East
Jerusalem, Israeli authorities cancelled or closed several Palestinian civic or
cultural events for being allegedly funded or sponsored by the Palestinian
Authority”.634 This echoes similar findings in 2012 that “[v]arious Arab cultural
events and activities in East Jerusalem have reportedly been prohibited by the
Israeli authorities”.635
2.235 Palestinian flags and other symbols of Palestinian identity are also targeted.
The OPT Special Rapporteur explained in 2022 that “Palestinian ‘symbols’, like
the Palestinian flag, are systematically attacked and torn down, in public places,
during public events, protests and even funerals, with the display of Palestinian
national identity being de facto banned”.636 As of 2023, this de facto ban on the
Palestinian flag has become official Israeli policy. Israel’s Security Minister,
Itamar Ben-Gvir, formally instructed Israeli police to remove Palestinian flags
632 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 54.
633 Ibid., paras. 53-55.
634 UNGA, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/74/468 (2 Oct. 2019) (Dossier No.
860), para. 36.
635 Human Rights Council, Report of Special Rapporteur F. La Rue on the promotion and protection
of the right to freedom of opinion and expression, UN Doc. A/HRC/20/17/Add.2 (11 June 2012),
para. 95.
636 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 53.
155
from all public spaces: “It cannot be that lawbreakers wave terrorist flags, incite
and encourage terrorism, so I ordered the removal of flags supporting terrorism
from the public space”.637
D. TOLERATION OF HATE SPEECH
2.236 Israel tolerates rampant hate speech and incitement against Palestinians by
government officials and private individuals, the result of which is to denigrate
their cultural and religious identity, create a climate of fear, and encourage similar
forms of hatred amongst the populace directed at Palestinians. In 2020, the CERD
Committee observed that there has been a “tide of racist hate speech in public
discourse, in particular by public officials, political and religious leaders, in certain
media outlets and in school curricula and textbooks”.638 It also noted a
“proliferation of racist and xenophobic acts that in particular target non-Jewish
minorities, especially Palestinian citizens of Israel [and] Palestinians residing in the
Occupied Palestinian Territories”.639
2.237 By way of example only, the UN Secretary-General reported on the
following incidents of incitement and hate speech against Palestinians by Israeli
officials between just March and June 2022:
• An “inflammatory annual flag march through the Damascus Gate and
the Muslim quarter was approved by Israeli authorities and went ahead
on 29 May”;
• “At a high school in [a] West Bank settlement, a deputy minister in the
Government of Israel said that ‘if there were a button you could press
637 A. Rabinovitch, “Israel’s Ben-Gvir tells police to remove Palestinian flags from public space,”
Reuters (8 Jan. 2023), available at https://tinyurl.com/2p92hrrv.
638 2020 CERD Concluding Observations, para. 26(a).
639 Ibid., para. 26(b).
156
that would make all the Arabs disappear … I would press that button’”;
and
• “Speaking at a plenary session of the Knesset, a member of the Knesset
threatened Israeli Arab students who flew Palestinian flags at Israeli
universities, telling them to ‘remember … your Nakbah’ in 1948,
adding that, ‘if you don’t calm down, we will teach you a lesson that
will not be forgotten.’”640
VII. Restrictions on the Development of the Palestinian Economy and
Exploitation of the OPT’s Natural Resources
2.238 Israel not only restricts the development of the Palestinian economy
through its policies and practices in the OPT, it also uses the occupied territories
for its own economic benefit, by exploiting its natural resources and carrying out
economic activities in the OPT.
2.239 First, Israel’s policies described in the preceding sections—especially those
aimed at controlling the land, land use, infrastructure and the Palestinian people’s
freedom of movement—severely constrain the Palestinian economy. Indeed, “the
largest and most visible constraint on Palestinian development is the
occupation”.641
2.240 As explained in Section III(B) above, Israel’s blockade has transformed
Gaza into an “unliveable” open-air prison, into which the import of goods are
640 UNSC, Implementation of Security Council resolution 2334 (2016), UN Doc. S/2022/504 (22
June 2022) (Dossier No. 1397), paras. 72, 74-75 (covering the reporting period of 19 March to 16
June 2022, see para. 1).
641 International Labour Organization, The Occupied Palestinian Territory: An Employment
Diagnostic Study (2018), available at https://tinyurl.com/4s4xvhjr, p. 21. See also UN Country
Team, Leave no one behind: A perspective on vulnerability and structural disadvantage in Palestine
(2016), available at https://tinyurl.com/bdfn577d, p. 11.
157
limited to “humanitarian” materials.642 Under these conditions, there is no hope of
economic development: factories are bombed out or shuttered; most of the sea
cannot be fished; large swathes of farming areas are restricted by the “buffer zone”;
and agricultural exports are often allowed to perish in the heat while they undergo
“security” inspections.643 Unemployment hovers around 50 percent.644 In 2020, the
UN Conference on Trade and Development (“UNCTAD”)
[A]ssessed the impact of the prolonged Israeli blockade and
economic and movement restrictions on poverty and socioeconomic
conditions in Gaza. It estimated the cumulative economic cost of
these factors and of military operations at $16.7 billion (in constant
2015 United States dollars), equivalent to six times the value of
Gaza GDP [(gross domestic product)], or 107 per cent of Palestinian
GDP, in 2018. In addition, the poverty rate in Gaza could have been
15 per cent in 2017 instead of the actual rate of 56 per cent.645
2.241 The economy of the West Bank is under a similar stranglehold. For
example, “as a result of mobility restrictions, Palestinians lose 60 million work
hours per year, equivalent to [US]$274 million”.646 And, as explained above, the
land available for Palestinian agricultural activities has shrunk as Israel’s
settlements have expanded.647 Israel’s land policies have also resulted in the
642 See supra paras. 2.94-2.96.
643 See supra § III(B).
644 See supra para. 2.88.
645 UNGA, Economic costs of the Israeli occupation for the Palestinian people: the toll of the
additional restrictions in Area C, 2000-2020, UN Doc. A/77/295 (16 Aug. 2022) (Dossier No. 489),
para. 24 (citing UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian
People: The Impoverishment of Gaza under Blockade (Dec. 2020), available at
https://tinyurl.com/2p8d893a.
646 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: Arrested
Development and Poverty in the West Bank (Dec. 2021), available at https://tinyurl.com/3cu8r8n8,
p. 9.
647 See supra para. 2.49.
158
destruction of approximately “two-thirds of all grazing land, and more than 2.5
million productive trees”,648 including 800,000 olive trees.649
2.242 The inevitable consequence of Israel’s land policies is the precipitous
contraction of Palestinian agriculture—the integral driver of the Palestinian
economy. Its share in Palestine’s GDP decreased from 33.2 percent in 1972 to 8.1
percent in 2019 and around four percent in recent years.650
2.243 As the UN Economic and Social Commission for Western Asia
(“ESCWA”) put it, these policies are “in themselves … enough to incapacitate the
normal operation of market forces in the Palestinian economy. However, their
impact is multiplied when coupled with measures that specifically target
Palestinian economic activity.”651 According to ESCWA:
These include restrictions over the use of natural resources, massive
resource transfers from the de-developed Palestinian economy to
the developed Israeli economy, inhibition of business activities by
an imposed regulatory regime, fiscal compression and diversion,
severance of the Palestinian economy from its natural environment
and markets, tying the fortunes of Palestinian labour to the Israeli
economy, fragmentation of the Palestinian market, and raising
transaction costs.652
648 UN ESCWA, Palestine Under Occupation III: Mapping Israel’s Policies and Practices and
their Economic Repercussions in the Occupied Palestinian Territory (June 2022) (hereinafter,
“ESCWA 2022 Report”), available at https://tinyurl.com/2e9p4eje, p. 21.
649 UN Trade and Development Board, Report on UNCTAD assistance to the Palestinian people:
Developments in the economy of the Occupied Palestinian Territory, UN Doc. TD/B/63/3 (28 Sept.
2016), para. 42(d).
650 See ESCWA 2022 Report, p. 42; UNGA, Report of the Independent International Commission
of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, U.N. Doc.
A/77/328 (14 Sept. 2022), para. 72.
651 ESCWA 2022 Report, p. 36.
652 Ibid.
159
2.244 Moreover, Israel systematically deprives the Palestinian Authority of the
ability to adopt and implement policies to promote economic development. As
explained by the UN Country Team in the OPT:
The Palestinian government has no control over its borders – land,
air or sea – or of its customs revenues. It does not have its own
currency or authority to print money. It lacks access and policy
prerogative over Area C. … The PA’s fiscal space is restricted. A
major part of the PA’s revenue (60%-70%) comes from the
clearance revenues system, in which all taxes and revenues due at
borders, seaports and by air on Palestinian goods and services are
collected by the Israeli fiscal authorities on behalf of the PA in
return for a 3% administrative charge to Israel.653
2.245 Israel even goes so far as to suspend periodically its transfer of hundreds of
millions of dollars of these tax revenues as retaliation against the Palestinian
Authority.654 Most recently, this tactic was used to “sanction” the Palestinian
Authority for the General Assembly’s request for an advisory opinion by the Court
in the present proceedings.655
2.246 Under these conditions, the Palestinian Authority has no “economic policy
space to promote growth of the Palestinian economy”,656 such as through public
spending or the promotion of trade and foreign direct investment.
2.247 Second, even as it actively chokes the Palestinian economy in the OPT,
Israel both freely exploits the natural resources there for its own benefit and
incentivizes the development of Israeli industry in the OPT. The OPT Special
653 UN Country Team, Leave no one behind: A perspective on vulnerability and structural
disadvantage in Palestine (2016), available at https://tinyurl.com/bdfn577d, p. 12.
654 ESCWA 2022 Report, pp. 37, 48.
655 “Israel to Withhold PA tax revenue, impose other sanctions after Abbas’s UN successes,” Times
of Israel (6 Jan. 2023), available at https://tinyurl.com/4yn58e3r.
656 ESCWA 2022 Report, p. 37.
160
Rapporteur has explained that Israel treats the OPT’s natural resources just as “a
sovereign country would use its own assets”.657 This is especially true with regard
to water, hydrocarbons and minerals.
2.248 Water. Israel controls all sources of natural fresh water in the West
Bank.658 In exercising this control, the Israeli national water company, Mekorot,
“prioritizes Israeli settlements to ensure their permanent water supply, [including]
during summer droughts”.659 As a result, Jewish Israeli settlers enjoy access to
water comparable to those living in developed countries.660 In contrast, Palestinian
communities in Area C that Mekorot also serves endure lengthy water shortages.661
2.249 In Areas A and B of the West Bank, where the Palestinian Authority is
responsible for water provision,662 Israel impedes it from adequately doing so by
blocking “Palestinian projects relating to developing and maintaining water
657 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the human rights situation
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on access to water
and environmental degradation, UN Doc. A/HRC/40/73 (30 May 2019), para. 56.
658 This was achieved through Military Order No. 92 of 1967, which remains in force today. See
Human Rights Council, Report of the UN High Commissioner for Human Rights on Allocation of
water resources in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/HRC/48/43 (15 Oct. 2021), para. 18.
659 Ibid., para 32.
660 On average, Israelis, including those living in settlements, use 247 liters of water per day per
person. In comparison, a French person uses about 290 liters of water per day, while a Singaporean
person uses about 141 liters per day. See US Centers for Disease Control and Prevention, “Water
Use Around the World” (last updated: 2 Jan. 2020), available at
https://tinyurl.com/46ev2nsv; Public Utilities Board, “Singapore Water Story” (last accessed: 6 July
2023), available at https://tinyurl.com/2rra4fmd.
661 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the human rights situation
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on access to water
and environmental degradation, UN Doc. A/HRC/40/73 (30 May 2019), para. 51; Amnesty
International, “Israel’s Occupation: 50 Years of Dispossession” (7 June 2017), available at
https://tinyurl.com/yc6nc7sc.
662 Human Rights Council, Report of the UN High Commissioner for Human Rights on Allocation
of water resources in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/HRC/48/43 (15 Oct. 2021), para. 28.
161
infrastructure”.663 To make matters worse, Israeli authorities have destroyed and
confiscated water infrastructure in the West Bank and allowed Israeli settlers to
take over, destroy or block Palestinian access to water resources.664
2.250 As a result of Israel’s measures, Palestinians in the West Bank face chronic
shortages of water. The average Palestinian there uses 73 litres per day, well below
the World Health Organization (“WHO”)’s 100-litre per day recommendation.665
This figure is also at least four times lower than the amount of water Jewish Israeli
settlers use each day.666 In 2021, the OHCHR reported that approximately 660,000
Palestinians in the West Bank—approximately 13 percent of the total Palestinian
population there—have limited access to water and roughly 140,000 have no
connection to a water network and are thus “at high risk for water scarcity”.667
2.251 Palestinians living in East Jerusalem also face severe restrictions in
accessing water under Israeli control. While those living in certain parts of the city
are serviced by the Water Authority of Israel, “older East Jerusalem houses and
structures are not connected to any water grid”.668 The HRC reported that
Palestinians in East Jerusalem have access to roughly four times less water than
Israeli settlers do in the neighbouring settlement of Ma’ale Adumim.669
663 Ibid. See also ibid., paras. 29-30.
664 Ibid., paras. 31, 34.
665 Amnesty International, “The Occupation of Water” (29 Nov. 2017), available at
https://tinyurl.com/428hpfv8.
666 Ibid.
667 Human Rights Council, Report of the UN High Commissioner for Human Rights on Allocation
of water resources in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/HRC/48/43 (15 Oct. 2021), para. 26.
668 Ibid., para. 41.
669 Ibid., para. 32.
162
2.252 Hydrocarbons. Israel also prevents Palestinians from developing “energy
reserves located within their land and coastal waters”.670 This includes oil reserves
in Area C as well as natural gas off the Gaza coast. These resources are estimated
to be worth hundreds of billions of dollars and belong to the Palestinian people.671
2.253 According to a study prepared by UNCTAD in 2019, however, Israel has
“de facto integrated [the Gaza natural gas fields] … into Israel’s offshore
installations”, which are “linked to Israel’s energy transport corridor”.672 Although
Israel made a statement to the media in June 2023 announcing that it preliminarily
approves of the exploitation of some of Gaza’s natural gas reserves by the
Palestinian Authority, it has said it will impose as yet undisclosed measures to
“preserv[e] the State of Israel’s security and diplomatic needs”.673
2.254 In the West Bank, Israel is extracting oil and natural gas from the Meged
field, which straddles the Israel-Palestine border north of Jerusalem, although most
of its reserves are “situated beneath the Palestinian territory occupied since
1967”.674
670 UNGA & ECOSOC, Economic and social repercussions of the Israeli occupation on the living
conditions of the Palestinian people in the Occupied Palestinian Territory, including East
Jerusalem, and of the Arab population in the occupied Syrian Golan, UN Doc. A/77/90-E/2022/66
(8 June 2022) (Dossier No. 147), para. 70.
671 Ibid., para. 70; ESCWA 2022 Report, p. 46; UNCTAD, The Economic Costs of the Israeli
Occupation for the Palestinian People: The Unrealized Oil and Natural Gas Potential (2019),
available at https://tinyurl.com/2nhvyfmh, p. 31.
672 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Unrealized Oil and Natural Gas Potential (2019), available at https://tinyurl.com/2nhvyfmh, pp.
22-23.
673 “Israel gives nod to Gaza Marine gas development, wants security assurances,” Reuters (18 June
2023), available at https://tinyurl.com/5n7dzf9s.
674 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Unrealized Oil and Natural Gas Potential (2019), available at https://tinyurl.com/2nhvyfmh, p. 25.
163
2.255 Minerals. Israel further grants permits to Israeli companies to extract and
sell the mineral resources of the West Bank. In 2015, Israeli companies extracted
17 million tons of stone from the West Bank, 94 percent of which was “shipped to
Israel for construction and infrastructure purposes”.675 It has also given Israeli
companies permission to harvest minerals from the West Bank coast of the Dead
Sea to make products for domestic and export markets.676 In 2015, Israel’s sales of
Dead Sea minerals amounted to approximately USD 3 billion, one percent of its
GDP.677 Palestinians, in contrast, are completely barred from economically
exploiting the Dead Sea’s resources.678
2.256 In addition to monopolizing the OPT’s natural resources, Israel also
promotes the development of Israeli industry and agriculture in the OPT. Israeli
businesses are offered “reductions in the price of land, grants for the development
of infrastructure, and preferential tax treatment”.679 At the same time, Israel readily
approves permits and licensing for Israeli businesses operating in or servicing the
settlements.680 To facilitate those businesses’ market access, Israel allows products
originating in Area C of the West Bank to be labelled as “made in Israel”681 and
675 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the human rights situation
in the Occupied Palestinian Territory, including East Jerusalem, with a focus on access to water
and environmental degradation, UN Doc. A/HRC/40/73 (30 May 2019), para. 57.
676 Ibid., para. 26.
677 ESCWA 2022 Report, p. 46.
678 Ibid.; Human Rights Council, Report of Special Rapporteur S. M. Lynk on the human rights
situation in the Occupied Palestinian Territory, including East Jerusalem, with a focus on access
to water and environmental degradation, UN Doc. A/HRC/40/73 (30 May 2019), para. 58.
679 Human Rights Council, Database of all business enterprises involved in the activities detailed
in paragraph 96 of the report of the independent international fact-finding mission to investigate
the implications of the Israeli settlements on the civil, political, economic, social and cultural rights
of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/HRC/37/39 (1 Feb. 2018), para. 43.
680 Ibid., para. 44.
681 J. Lis & B. Samuels, “Israel slams Norway for marking products made in West Bank
settlements,” Haaretz (11 June 2022), available at https://tinyurl.com/3nsfhe8t.
164
takes steps to prevent other States from “distinguishing between Israelimanufactured
products and those coming from settlements”.682
2.257 At the same time, Palestinian-owned businesses not only do not receive the
same incentives that Israeli businesses in the West Bank do, they actually confront
heightened hurdles. They face high tariffs; import and export restrictions; and the
denial of, or substantial delays in granting, applications for land acquisition and
construction permits.683 These barriers further “depress the Palestinian economy
and … reduce opportunities for Palestinian businesses to thrive”.684
***
2.258 Overall, Israel’s occupation and economic policies have had a devastating
impact on the Palestinian economy. According to UN estimates, without many of
Israel’s discriminatory practices and policies in the OPT, the West Bank GDP per
capita in 2019 would have been 44 percent higher than it actually was.685 The
World Bank reported that, “[d]uring 2017-19, annual GDP growth [of the
Palestinian economy] averaged 1.3%—lower than the population growth rate”,686
682 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 36.
683 ESCWA 2022 Report, pp. 36-37, 63. See supra paras. 2.51-2.53.
684 Human Rights Council, Database of all business enterprises involved in the activities detailed
in paragraph 96 of the report of the independent international fact-finding mission to investigate
the implications of the Israeli settlements on the civil, political, economic, social and cultural rights
of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/HRC/37/39 (1 Feb. 2018), para. 52.
685 See UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People:
Arrested Development and Poverty in the West Bank (Dec. 2021), UNCTAD/GDS/APP/2021/2 and
UNCTAD/GDS/APP/2021/2/Corr.1, available at https://tinyurl.com/3cu8r8n8.
686 See The World Bank, “Palestinian Territories’ Economic Update – April 2022” (14 Apr. 2022),
available at https://tinyurl.com/4hmtm9v7.
165
which was about 2.5 percent.687 In 2020, the “poverty rate [in Palestine] spiked to
29.7%”, meaning that 1.5 million Palestinians live in poverty.688 Israel has caused
the “de-development”689 of the Palestinian economy and its complete dependency
on Israel. This “forced dependency … undermines severely the potential for an
independent, viable Palestinian state”.690
VIII. Suppression of Journalists, Civil Society, and
NGOs Opposing the Occupation
2.259 Finally, Israel also systematically suppresses nonviolent forms of resistance
against it by targeting and obstructing the work of journalists seeking to document
or publicize the occupation’s brutality (Section A); and repressing the efforts of
Palestinian human rights activists and NGOs (Section B).
A. THE SYSTEMATIC TARGETING AND OBSTRUCTION OF JOURNALISTS
2.260 Israel has a well-documented pattern of targeting journalists attempting to
report on the occupation. As the press freedom NGO Reporters Sans Frontières
(“RSF”) recently explained: “Whenever tension or violence erupts in Jerusalem or
the West Bank, Israeli forces systematically target Palestinian journalists,
obstructing them or attacking them in order to prevent them from filming or taking
photos.”691 Israel harasses and intimidates journalists in the OPT by, inter alia,
687 The World Bank, “Population growth (annual %) – West Bank and Gaza,” available at
https://tinyurl.com/bdhpnyee.
688 See The World Bank, “Palestinian Territories’ Economic Update – April 2022” (14 Apr. 2022),
available at https://tinyurl.com/4hmtm9v7.
689 ESCWA 2022 Report, p. 1.
690 Ibid., p. 2.
691 See “Israel must stop targeting Palestinian journalists,” RSF (last updated: 19 June 2023),
available at https://tinyurl.com/ycxhsxea.
166
(i) subjecting them to violence; (ii) arbitrarily detaining them; and (iii) restricting
their access to and within the OPT.
2.261 First, Israeli forces have repeatedly used violence against journalists
reporting on Israeli military operations and other uses of force against Palestinians.
Since 2001, the IDF has killed at least 20 journalists.692 Many more have been
assaulted. In 2021 alone, the Palestinian Center for Development and Media
Freedom documented 158 incidents of violence against Palestinian journalists by
Israel.693
2.262 The most notorious example is the killing of Palestinian-American reporter
Shireen Abu Akleh in May 2022. Abu Akleh was a widely respected journalist and
one of Al Jazeera’s leading reporters in the OPT for more than 20 years. While
covering a military operation by Israeli security forces in the West Bank city of
692 Committee to Protect Journalists, Deadly Pattern: 20 journalists died by Israeli military fire in
22 years. No one has been held accountable (9 May 2023), available at
https://tinyurl.com/4xtzc6pw, p. 5. See also UNGA, Israeli practices affecting the human rights of
the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/67/372 (14 Sept. 2012) (Dossier No. 853), para. 22 (“Journalists should be allowed to report on
protests in safety and free from intimidation and violence. OHCHR documented four cases during
the first half of 2012, where journalists or photographers appear to have been directly targeted by
IDF or the Border Police, including with rubber-coated metal bullets, despite being clearly visible
as members of the press by wearing ‘PRESS’ vests and carrying cameras or other equipment. The
targeting by Israeli security forces of journalists and photographers covering protests in the West
Bank, including East Jerusalem, is a cause of concern.”).
693 The Palestinian Center for Development and Media Freedom (“MADA”), The Annual Report
2021: The Media Freedom Violations in Palestine (2021), available at https://tinyurl.com/38na9t6t,
p. 11 (recording 155 instances of physical violations and 3 killings). See also H. Abushkhaidem,
“Not just Shireen: how Israel has attacked journalists and newsrooms in Palestine,” Reuters Institute
(6 July 2022), available at https://tinyurl.com/ywz9va4b. MADA also reported that “31 news
organisations were either closed or destroyed by Israel in 2021, 30 of them during the latest Israeli
attack on Gaza in May 2021”. Ibid.
167
Jenin and wearing a blue vest emblazoned with the word “PRESS”, she was fatally
shot in the head.694
Figure 2.37: Shireen Abu Akleh695
694 A. Sawafta, “Palestinians hand bullet that killed journalist to U.S. for examination,” Reuters (2
July 2022), available at https://tinyurl.com/yxpac9rt (“Video footage showed that Abu Akleh, 51,
was wearing a blue vest clearly marked ‘Press’ when she was shot.”); Forensic Architecture,
“Shireen Abu Akleh: The Extrajudicial Killing of a Journalist” (20 Sept. 2022), available at
https://tinyurl.com/69u9h9fa (“Shireen and her colleagues were clearly identifiable as journalists
when they were shot at. Reconstruction based on digital modelling, physical reconstruction and
optical analysis confirms that the journalists followed standard protocols for self-identification and
that their large ‘PRESS’ insignia were clearly visible from the position of the IOF shooter in the
moments surrounding the shooting. Furthermore, the autopsy report demonstrated that Shireen was
positioned away from the shooter in such a way that her PRESS vest should have been easily
legible.”).
695 Encyclopedia Britannica, “Shireen Abu Akleh” (online version) (last updated: 14 July 2023),
available at https://tinyurl.com/e852h4tb.
168
2.263 Independent investigations by experts and human rights organizations
including the OHCHR,696 the Israeli human rights organization B’Tselem,697 the
Palestinian human rights organization Al-Haq,698 and CNN 699 have all attributed
the fatal gunfire to Israeli forces. A report by Al-Haq states that “Shireen and her
journalist colleagues were clearly identifiable as journalists to the [IDF] marksman
[who] repeatedly and deliberately targeted [them] with the intention to kill …
Shireen was deliberately denied first aid after being shot …”.700 To add insult to
injury, during her funeral procession, Israeli forces attacked mourners, “kicking
and hitting people with batons and causing mourners carrying her coffin to lose
balance and drop it to the ground”.701 Many of the thousands of people gathered
waved Palestinian flags—a rare sight in occupied East Jerusalem, where Israel
“forbids public displays of Palestinian flags and often prevents people from
hoisting them at rallies and protests in the city”.702 A video from the day shows an
Israeli officer warning mourners: “If you don’t stop these chants and [Palestinian]
696 In a statement issued on 24 June 2022 in Geneva, the spokesperson for the UN High
Commissioner for Human Rights said: “All information we have gathered … is consistent with the
finding that the shots that killed Abu Akleh and injured her colleague Ali Sammoudi came from
Israeli Security Forces and not from indiscriminate firing by armed Palestinians, as initially claimed
by Israeli authorities.” See OHCHR, Press Briefing Notes: Killing of journalist in the occupied
Palestinian territory (24 June 2022), available at https://tinyurl.com/yc5e2whx.
697 B’Tselem, Tweet (11 May 2022), available at https://tinyurl.com/274e58jb.
698 Forensic Architecture & Al-Haq, Report: Shireen Abu Akleh: The Extrajudicial Killing of a
Journalist (4 Nov. 2022), available at https://tinyurl.com/b766fc4m.
699 Z. Saifi et al., “‘They were shooting directly at the journalists’: New evidence suggests Shireen
Abu Akleh was killed in targeted attack by Israeli forces,” CNN (last updated: 26 May 2022),
available at https://tinyurl.com/m5mchkt6.
700 Forensic Architecture, Video Report: Shireen Abu Akleh: The Extrajudicial Killing of a
Journalist, available at https://tinyurl.com/69u9h9fa, at 10:00-10:41; “RSF backs request by
Shireen Abu Akleh’s family for ICC investigation,” RSF (21 Sept. 2022), available at
https://tinyurl.com/yc278wn9.
701 S. Taha, “Israeli police attack funeral procession for shot journalist Shireen Abu Aqleh,” The
Guardian (13 May 2023), available at https://tinyurl.com/38fh4npj.
702 Ibid.
169
nationalistic songs we will have to disperse you using force and we won’t let the
funeral take place”.703
2.264 Israel has moreover conducted no effective or meaningful investigation into
the incident. More than a year after her murder, no one has been held
accountable.704 Far from it: on 7 September 2022, Israeli Prime Minister, Yair
Lapid, said he was opposed to prosecuting the soldier who shot Abu Akleh, stating:
“I will not allow the prosecution of a soldier who was protecting himself from
terrorist shots, just to get congratulations from abroad.” 705
2.265 Abu Akleh’s killing is far from the only recent example of Israel’s violence
against members of the press. In March 2018 alone, the IDF shot 20 journalists
covering the Great March of Return in Gaza, killing two of them.706 Section B,
supra, recounted the story of a student journalist, Youssef Kronz, who was shot in
the legs with two bullets in immediate succession. Kronz was “wearing a blue vest
marked ‘Press’ while photographing the demonstrations approximately 800 m from
the separation fence”.707 His right leg had to be amputated.
2.266 Israel has also bombed journalists’ offices and destroyed their equipment.
For example, in May 2021, Israeli air strikes targeted and destroyed a building in
Gaza housing the offices of 23 Palestinian and international media outlets,
703 Ibid.
704 See “Israel must complete a full and transparent investigation into Shireen Abu Akleh’s killing,”
RSF (6 Sept. 2022), available at https://tinyurl.com/2ynts9mn.
705 Ibid.
706 “RSF asks ICC to investigate Israeli sniper fire on Palestinian journalists,” RSF (15 May 2018),
available at https://tinyurl.com/ar5th6yk.
707 Human Rights Council, Report of the independent international commission of inquiry on the
protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 44(a).
170
including the Associated Press and Al Jazeera.708 While Israel attempted to justify
this attack after the fact by claiming that there were legitimate military targets in
the building, Human Rights Watch noted that it “provided no evidence to support
any of [its] allegations”.709 Attacks like this are one of the reasons why several UN
Special Rapporteurs have called for an ICC probe into Israel’s 2021 military
campaign in Gaza.710
708 “RSF asks ICC prosecutor to say whether Israeli airstrikes on media in Gaza constitute war
crimes,” RSF (16 May 2021), available at https://tinyurl.com/24ks9cxe.
709 “Gaza: Israel’s May Airstrikes on High-Rises,” Human Rights Watch (23 Aug. 2021), available
at https://tinyurl.com/2bp3zsa2.
710 OHCHR, Press Release: Gaza-Israel: UN experts welcome ceasefire, call for ICC probe (21
May 2021), available at https://tinyurl.com/2umhx9db.
171
Figure 2.38: The building housing the offices of the Associated Press and other
media in Gaza City collapses after it was hit by an Israeli airstrike,
15 May 2021711
2.267 Second, Israel frequently deprives Palestinians journalists operating in the
OPT of their liberty. From 2020 to mid-2022, Israel administratively detained or
prosecuted at least 26 Palestinian journalists in the West Bank.712 On the rare
711 J. Federman, “‘Shocking and horrifying’: Israel destroys AP office in Gaza,” Associated Press
(15 May 2021), available at https://tinyurl.com/4rs6vkrx.
712 Y. Abraham, “Israel Charges Palestinian Journalists With Incitement — For Doing Their Jobs,”
The Intercept (5 Apr. 2022), available at https://tinyurl.com/vvbnkbwa. See also Human Rights
Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the Occupied
Palestinian Territory, including East Jerusalem, with a focus on the legal status of the settlements,
UN Doc. A/HRC/47/57 (29 July 2021), para. 19 (stating that in May and June 2021, the Israeli
Security Forces also arrested a number of activists and journalists covering the peaceful
demonstrations that took place in Sheikh Jarrah in response to the forced displacement of
Palestinians); UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in
the Palestinian territories occupied since 1967, UN Doc. A/76/433 (22 Oct. 2021), para. 9
(“Palestinian journalists who report on human rights violations in the Occupied Palestinian Territory
faced harassment and violence in an attempt to intimidate them and prevent media coverage of
peaceful Palestinian protests. On 27 August 2021, Israeli security forces arrested seven Palestinian
172
occasions when charges are brought, they are frequently for the vague offense of
“incitement”.713 This was the case for Hazem Nasser, whose experience
exemplifies Israel’s use of arrest and detention as an intimidation tactic.
2.268 Nasser is a journalist for the Palestinian television network Falastin Al-
Ghad. On 10 May 2021, he filmed an encounter between Palestinians protesters
and the IDF in the West Bank. On his way home afterwards, he was stopped by
Israeli soldiers at the Huwara checkpoint and interrogated. He recalls:
All the questions were about my journalism … They put images
from my video reports on the table, including a funeral of a dead
Palestinian, people gathering for a protest, a square honoring a
shaheed [martyr], a march with Hamas flags. The interrogator told
me I cannot photograph these things, because they are incitement. I
told him that I am a journalist and this is my job—to show images
of things that are happening, and that Israeli outlets do the same
thing. He yelled at me to stop.714
2.269 Nasser was then prosecuted in a military court on charges of incitement. He
chose to plead guilty “in order to be released”.715 A week before he was to be
released, Nasser learned that an administrative detention order had been issued
journalists who were covering a peaceful demonstration against the establishment of new outposts
and violence by settlers in the southern hills of Hebron. The journalists were arrested and their
equipment confiscated when they headed to their cars shortly after the protest ended, although they
identified themselves as journalists to the soldiers. They were handcuffed, left to sit in the scorching
sun for an hour, and later taken to the Qiryat Arba‘ police station, where they were interrogated.
Two of the journalists claimed that they were attacked and beaten by the soldiers during the arrest.”).
713 Y. Abraham, “Israel Charges Palestinian Journalists With Incitement — For Doing Their Jobs,”
The Intercept (5 Apr. 2022), available at https://tinyurl.com/vvbnkbwa; “Palestine: Israeli court
extends detention of Palestinian journalist Lama Ghosheh,” Middle East Eye (8 Sept. 2022),
available at https://tinyurl.com/5hkehzk5.
714 Y. Abraham, “Israel Charges Palestinian Journalists With Incitement — For Doing Their Jobs,”
The Intercept (5 Apr. 2022), available at https://tinyurl.com/3j7e28z4.
715 Ibid.
173
against him, pursuant to which he was detained for an additional five months.716
Nasser has been released but now rarely publishes anything. Like many Palestinian
journalists, he lives in constant fear of reprisal and self-censors.717
2.270 A pattern of similar incidents has prompted RSF to “condemn[] Israel’s
misuse of administrative detention to hound Palestinian reporters”.718 The
International Federation of Journalists has likewise “call[ed] on the Israeli
authorities to investigate every incident to make sure all journalists can carry out
their duties without being targeted or harassed”.719 As of May 2021, 13 journalists
were in administrative detention.720
2.271 Third, Israel restricts journalists’ access to parts of the OPT as well as their
freedom of movement within the territory. Journalists frequently do not even
attempt to obtain a travel permit to enter Gaza, “knowing that the procedures are
lengthy and complicated and usually end with rejection”.721 Within the West Bank,
journalists face travel bans as reprisals for their reporting. As the Euro-
Mediterranean Human Rights Monitor reports, Israel has banned “journalists from
entering certain areas and neighborhoods in the Palestinian territories to prevent
them from covering events that are taking place there”.722 In other instances,
716 Ibid.
717 Ibid.
718 RSF, “Israel now holding 13 Palestinian journalists” (28 May 2021), available at
https://tinyurl.com/mr25b6u5.
719 IFJ, “Israel: Israeli Palestinian journalists harassed and attacked” (27 May 202), available at
https://tinyurl.com/y6r7phva.
720 RSF, “Israel now holding 13 Palestinian journalists” (28 May 2021), available at
https://tinyurl.com/mr25b6u5.
721 Euro-Mediterranean Human Rights Monitor, Punishing Journalists: Israel's restrictions on
freedom of movement and travel against Palestinian journalists (29 Nov. 2021), available at
https://tinyurl.com/6x2j6k75, p. 10.
722 Ibid.
174
journalists have been banned from traveling abroad and from returning to their
homes in the OPT from abroad, also as reprisals for the content of their reporting.723
2.272 Israel’s suppression of journalists is designed to obscure the reality on the
ground and perpetuate a climate of impunity. In the words of RSF Secretary-
General Christophe Deloire: “By intentionally destroying media outlets, the Israel
Defence Forces are not only inflicting unacceptable material damage on news
operations” but they “are also, more broadly, obstructing media coverage of a
conflict that directly affects the civilian population”.724
B. REPRESSION OF CIVIL SOCIETY AND POLITICAL DISSENT
2.273 Israel also uses repressive tactics to undermine civil society and quash
political dissent in the OPT. According to Amnesty International, this “pattern of
harassment” of NGOs and human rights defenders is “designed to curtail their vital
work”.725
2.274 First, just as with journalists, there is an “intentional Israeli policy to detain
individuals, including prisoners of conscience held solely for the exercise of their
rights to freedom of expression and association and to punish them for their views
and activism challenging the policies of occupation”.726 For example, following his
participation in a peaceful demonstration on 8 January 2021, Sami Huraini, a
Palestinian activist known for his nonviolent resistance against Jewish Israeli
723 Ibid., pp. 3-4.
724 “RSF asks ICC prosecutor to say whether Israeli airstrikes on media in Gaza constitute war
crimes,” RSF (16 May 2021), available at https://tinyurl.com/24ks9cxe.
725 Amnesty International, Press Release: Israel must stop attacks on Palestinian NGOs and human
rights defenders (11 Dec. 2022), available at https://tinyurl.com/ytnw2a3h.
726 Amnesty International, Urgent Action: Palestinian Lawyer in Arbitrary Detention (15 Mar.
2022), available at https://tinyurl.com/2ja6ddzf, p. 2.
175
settlements in the West Bank, was prosecuted for “allegedly obstructing and
assaulting a soldier and entering a closed military zone”.727 Four UN Special
Rapporteurs denounced his prosecution, stating that it “clearly show[ed] an
aggravating trend of Israel’s criminalisation and harassment of human rights
defenders, aimed at silencing them and rooting out human rights work in the
region”.728
2.275 Second, Israel harasses and otherwise impedes the work of Palestinian
human rights organizations. It is, for example, not uncommon for Israeli authorities
to raid the offices of human rights organizations.729 Israel has hacked the electronic
devices of human rights defenders.730 And in 2021, it designated six prominent
Palestinian human rights and civil society organizations731—which were well-
727 OHCHR, Press Release: Israel: Criminalisation and harassment of human rights defenders in
Masafer Yatta must end, say UN experts (2 Aug. 2022), available at https://tinyurl.com/2p8843ht.
728 Ibid. The four Special Rapporteurs are: Francesca Albanese, Special Rapporteur on the situation
of human rights in the Palestinian Territory occupied since 1967; Balakrishnan Rajagopal, Special
Rapporteur on the right to adequate housing; Cecilia Jimenez-Damary, Special Rapporteur on the
human rights of internally displaced persons; Mary Lawlor, Special Rapporteur on the situation of
human rights defenders.
729 See, e.g., “Occupation forces raid the offices of Bisan Center for Research and Development,”
Bisan (29 July 2021), available at https://tinyurl.com/hab5ha4k; Amnesty International, Press
Release: Israel ramps up assault on civil society with chilling raid on Palestinian NGO Addameer
(19 Sept. 2019), available at https://tinyurl.com/5d3fjnek; Adalah, Press Release: Adalah: Israeli
army raid on Palestinian NGO’s office is direct attack on human rights” (19 Sept. 2019), available
at https://tinyurl.com/22vbx7f2; OHCHR, Press Release: UN experts condemn raid on West Bank
NGO, urge Israel meaningfully probe child deaths (13 Aug. 2021), available at
https://tinyurl.com/2n7bmtpt; UNGA, Report of Special Rapporteur F. Albanese on the situation of
human rights in the Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022),
para. 60.
730 See Front Line Defenders, Six Palestinian human rights defenders hacked with NSO Group’s
Pegasus Spyware (8 Nov. 2021), available at https://tinyurl.com/rsfnyuks; Amnesty International,
Devices of Palestinian Human Rights Defenders Hacked with NSO Group’s Pegasus Spyware (8
Nov. 2021), available at https://tinyurl.com/yc5nssur; UNGA, Report of Special Rapporteur F.
Albanese on the situation of human rights in the Palestinian territories occupied since 1967, UN
Doc. A/77/356 (21 Sept. 2022), para. 60.
731 These organizations are Addameer, Al-Haq, Defense for Children International - Palestine, the
Union of Agricultural Work Committees, the Bisan Center for Research and Development, and the
Union of Palestinian Women Committees.
176
known for their work with Palestinian women and girls, children, low-income
families, prisoners, and civil society activists, providing direct services and
monitoring human rights abuses by Israeli authorities732—as “terrorist
organizations”, thus preventing them from operating in the OPT and receiving
funding.733 Israel alleged that the organizations “were active under the cover of
civil society organizations, but in practice belong and constitute an arm of the
[Popular Front for the Liberation of Palestine]”734, a group designated as a terrorist
organization by the United States,735 but it has not substantiated this claim. As the
OHCHR observed, “[w]ithout adequate substantive evidence, these decisions
appear arbitrary, and further erode the civic and humanitarian space in the
Occupied Palestinian Territory”.736
2.276 Third, and relatedly, Israel takes punitive measures against prominent
Palestinians who oppose the occupation, as part of its “effort to suppress Palestinian
732 UNGA, Meeting Coverage: Outraged over Israel’s Designation of Six Civil Society Groups as
Terrorists, Speakers Tell Palestinian Rights Committee Harassment against Human Rights
Defenders Must End, UN Doc. GA/PAL/1443 (7 Dec. 2021), available at
https://tinyurl.com/8umw9tnb; “US lawmakers denounce blacklisting of Palestinian NGOs by
Israel,” Al Jazeera (18 July 2022), available at https://tinyurl.com/yc8a83me.
733 “Israel/OPT: The stifling of Palestinian civil society organizations must end,” Amnesty
International (18 Aug. 2022), available at https://tinyurl.com/2wpaf49s.
734 A. Boxerman, “Israeli ‘terror’ designation of Palestinian NGOs sparks furious int’l backlash,”
Times of Israel (22 Oct. 2021), available at https://tinyurl.com/yrdj3z8h.
735 US Department of State, “Foreign Terrorist Organizations” (last accessed: 18 July 2023),
available at https://tinyurl.com/4k8dw4wj.
736 UNGA, Meeting Coverage: Outraged over Israel’s Designation of Six Civil Society Groups as
Terrorists, Speakers Tell Palestinian Rights Committee Harassment against Human Rights
Defenders Must End, UN Doc. GA/PAL/1443 (7 Dec. 2021), available at
https://tinyurl.com/8umw9tnb. Similarly, nine EU Member States issued a statement affirming that
“no substantial information was received from Israel that would justify reviewing our policy
towards the six Palestinian NGOs on the basis of the Israeli decision to designate these NGOs as
‘terrorist organizations’”. See also OHCHR, Press Release: Israel/Palestine: UN experts call on
governments to resume funding for six Palestinian CSOs designated by Israel as ‘terrorist
organisations’ (25 Apr. 2022), available at https://tinyurl.com/3tf3r645.
177
political processes”.737 For example, Israel routinely detains on arbitrary grounds
Palestinian political leaders, including elected representatives, ministers and
mayors.738 As of July 2023, four Palestinian Legislative Council members in the
West Bank were in detention.739 It has also carried out extrajudicial killings of
Palestinian activists, as the Palestinian human rights organization Al-Haq has
documented.740 Furthermore, as the OPT Special Rapporteur reports, Israel has
since 2002 developed a pattern of deporting to Gaza individuals “believed to be
leading resistance, such as public servants, religious leaders and activists, lawyers,
journalists and students involved in political activities”.741 Threats of punitive
measures are made even to members of the Knesset. For example, in 2018, “[a]
senior minister from Prime Minister Benjamin Netanyahu’s Likud party … said
Arab [members of Knesset] reportedly seeking United Nations condemnation of
Israel for passing the controversial nation-state law last month should be tried for
treason”.742
2.277 Fourth, Israel denies entry to the OPT by human rights defenders. In
particular, it has refused to allow Human Rights Watch staff to enter Gaza since
737 Addameer, “Arrest of Legislative Council Members” (Nov. 2018), available at
https://tinyurl.com/bdkmj4a6. See also UNGA, Report of Special Rapporteur F. Albanese on the
situation of human rights in the Palestinian territories occupied since 1967, UN Doc. A/77/356 (21
Sept. 2022), paras. 56, 61-62.
738 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 59;
Addameer, “Administrative Detention Fact Sheet 2022 (20 Jan. 2022), available at
https://tinyurl.com/3ywm7mt5.
739 Addameer, “Statistics” (last updated: 11 July 2023)), available at https://tinyurl.com/ydwuxe95.
740 Al-Haq, Wilful Killing: The Assassination of Palestinians in the Occupied Palestinian
Territories by the Israeli Security Forces (Feb. 2001), available at https://tinyurl.com/bp96rm8w.
741 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 59.
742 M. Bachner, “Minister urges prosecution of Arab MK ‘traitors’ who seek UN censure of Israel,”
Times of Israel (27 Aug. 2018), available at https://tinyurl.com/5n84nfzx.
178
2008743 and, in 2019, deported the organization’s Israel and Palestine director.744
Similarly, Israel has denied access to consecutive UN Special Rapporteurs on the
OPT.745 In 2017, in furtherance of this policy, Israel passed an anti-boycott law that
allows authorities to deny entry into Israel of people who support boycotting Israel
and the Jewish Israeli settlements in the OPT.746 As of 2019, at least 14 people have
been denied entry based on this law, including American and French politicians,
European Union parliamentarians, and international human rights defenders.747
2.278 Finally, Israel retaliates against Palestinians’ attempts to seek justice before
international courts and tribunals, including this Court. In January 2023, Israel’s
security cabinet approved a series of sanctions against the Palestinian Authority in
response to the passage in the General Assembly of the present request for an
Advisory Opinion.748 Among the measures approved were seizing tax revenues
743 “Gaza: Apparent War Crimes During May Fighting,” Human Rights Watch (27 July 2021),
available at https://tinyurl.com/356pcrty (“Human Rights Watch on May 30 requested permits for
senior Human Rights Watch researchers to enter Gaza to conduct further investigation of the
hostilities, but Israeli authorities on July 26 rejected the request. Israeli authorities have since 2008
refused access to Gaza for Human Rights Watch international staff, except for a single visit in 2016.
Israel’s allies should push for access to Gaza for human rights organizations to investigate and
document human rights abuses.”).
744 “Israel Expels Human Rights Watch Director Today,” Human Rights Watch (25 Nov. 2019),
available at https://tinyurl.com/4z37ccvy.
745 See OHCHR, Press Release: Occupied Palestinian Territory: UN human rights expert says
Israel bent on further annexation (12 July 2019), available at https://tinyurl.com/mr4bzyre;
OHCHR, “Special Rapporteur on Occupied Palestinian Territory resigns due to continued lack of
access to OPT” (4 Jan. 2016), available at https://tinyurl.com/ye25wxhb.
746 Israel, Amendment No. 28 to the Entry Into Israel Law (No. 5712-1952) (6 Mar. 2017). See also
O. Liebermann, “Israel’s travel ban: Boycott supporters to be turned away,” CNN (7 Mar. 2017),
available at https://tinyurl.com/yc83cbdm.
747 N. Chokshi, “The Anti-Boycott Law Israel Used to Bar Both Omar and Tlaib,” New York Times
(15 Aug. 2019), available at https://tinyurl.com/4z58szsz.
748 “Israel to withhold PA tax revenue, impose other sanctions after Abbas’s UN success,” Times of
Israel (6 Jan. 2023), available at https://tinyurl.com/4rkcpceb.
179
Israel collects on behalf of the Palestinian Authority and freezing the already
severely constrained Palestinian construction in much of the West Bank.749
749 Ibid.
181
CHAPTER 3
THE CONDUCT OF ISRAEL’S SETTLER-COLONIAL OCCUPATION
OF PALESTINIAN TERRITORY VIOLATES ITS OBLIGATIONS
UNDER THE UN CHARTER, INTERNATIONAL HUMAN RIGHTS
LAW, INTERNATIONAL HUMANITARIAN LAW AND THE
PROHIBITION OF CRIMES AGAINST HUMANITY
3.1 The foregoing policies and practices through which Israel conducts its
settler-colonial occupation of the OPT amount to numerous discrete breaches of
international law. This Chapter highlights four major categories: Israel’s violation
of the UN Charter by the illegal annexation of East Jerusalem and Area C of the
West Bank (Section I), its wholesale failure to comply with its obligations under
IHRL (Section II), its persistent breach of core norms of IHL (Section III), and
the commission of crimes against humanity (Section IV).
I. Israel Has Illegally Annexed East Jerusalem and Area C of the West Bank
3.2 Article 2(4) of the UN Charter provides in relevant part that States “shall
refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state”.750 The UN General
Assembly, in its 1970 Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States, declared: “No territorial
acquisition resulting from the threat or use of force shall be recognized as legal.”751
The UN Security Council has likewise recognized “the inadmissibility of the
acquisition of territory by war”.752 In the Wall Advisory Opinion, the Court made
750 Charter of the United Nations (hereinafter, “UN Charter”), art. 2(4).
751 UNGA, Resolution 2625 (XXV), Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations, UN Doc. A/RES/2625(XXV) (24 Oct. 1970) (hereinafter, “UNGA Res. 2625 (XXV)”).
752 See, e.g., UNSC, Resolution 242, The Situation in the Middle East, UN Doc. S/RES/242(1967)
(22 Nov. 1967) (Dossier No. 1245) (hereinafter, “UNSC Res. 242 (1967)”); UNSC, Resolution
2334, The Situation in the Middle East, UN Doc. S/RES/2334 (2016) (23 Dec. 2016) (Dossier No.
182
clear that the rule establishing “the illegality of territorial acquisition resulting from
the threat or use of force” had the status of customary international law.753
3.3 Because an occupation by definition results from the use of force, the
annexation of any part of the OPT violates international law. Indeed, the annexation
of occupied territory is antithetical to one of the “foundational principles of the
laws of occupation, which stipulates that the occupying power’s tenure is
inherently temporary”.754
3.4 The annexation of occupied territory is also illegal because it constitutes a
gross violation of the right to self-determination of the people whose territory is
occupied. The UN Charter sets out the foundational nature of the right to “selfdetermination
of peoples”,755 to which the General Assembly has declared “[a]ll
peoples have the right”.756 The Court recognized in the East Timor case that the
notion that “the right of peoples to self-determination … has an erga omnes
character, is irreproachable”.757 The International Law Commission (“ILC”)
subsequently observed that “the right to self-determination” is one of the
“peremptory norms that are clearly accepted and recognized”.758
1372) (hereinafter, “UNSC Res. 2334 (2016)”) (“the acquisition of territory by force [is
inadmissible]”).
753 Wall Advisory Opinion, para. 87.
754 E. Benvenisti, THE INTERNATIONAL LAW OF OCCUPATION (2nd Ed., OUP, 2012), p. 6.
755 UN Charter, art. 1(2).
756 UNGA, Resolution 1514 (XV), Declaration on the granting of independence to colonial
countries and peoples, UN Doc. A/RES/1514(XV) (14 Dec. 1960) (Dossier No. 55) (hereinafter,
“Colonial Declaration (14 Dec. 1960)”).
757 Case Concerning East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90
(hereinafter, “East Timor Judgment”), para. 29. See also Wall Advisory Opinion, para. 156.
758 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2001 (Vol. II, Pt. 2),
Article 26 Commentary, para. 5.
183
3.5 The prohibition on the annexation of occupied territory applies not only to
de jure annexations but also de facto annexations; i.e., those carried out by
“establishing ‘facts on the ground’ that are intended to be irreversible and
permanent while avoiding any formal proclamation” of annexation759. In the Wall
Advisory Opinion, the Court recognized the possibility that situations might exist
that “would be tantamount to de facto annexation”.760 The former OPT Special
Rapporteur, Michael Lynk, explained that “if the prohibition against annexation is
to be coherent and effective … then the liberal purposes of international law should
ensure that the absolute prohibition against annexation extends to those
incremental, yet substantive, measures being taken by a State in violation of
international humanitarian law to lay the ground for a future claim of sovereignty
over conquered and/or occupied territory”.761
A. ISRAEL’S DE JURE ANNEXATION OF EAST JERUSALEM VIOLATES
INTERNATIONAL LAW
3.6 Israel has annexed East Jerusalem de jure by, inter alia, the following
measures:
• In June 1967, it issued Law and Administration Order (No. 11), which
extended the “the law, jurisdiction and administration” of Israel to the
territory of East Jerusalem and the “Jerusalem Declaration” expanding
the municipal boundaries of Jerusalem to that territory.762
759 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
13. See also Wall Advisory Opinion, para. 121.
760 Wall Advisory Opinion, para. 121.
761 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), para. 30.
762 R. Levush, “Israel: Legal Aspects of Ceding Israeli Territory,” THE LAW LIBRARY OF CONGRESS
(Oct. 2018), available at https://tinyurl.com/mr3stwy4, pp. 2, 4-5.
184
• In 1980, the Knesset passed the “Basic Law: Jerusalem, Capital of
Israel”, which provides that “[t]he complete and united Jerusalem is the
capital of Israel”.763 Interpreting this provision in 1993, the Israeli
Supreme Court concluded that it, along with the 1967 measures,
“established the sovereignty of the State of Israel over whole and united
Jerusalem, as the capital of Israel”.764
• In 2000, the Knesset amended the Basic Law: Jerusalem, Capital of
Israel to further clarify Israel’s claim of sovereignty over Jerusalem. It
provides that “the limits of Jerusalem include, for the purpose of this
Basic Law, the whole area described in the addendum to the declaration
of the expansion of the limits of the Jerusalem municipality” of 1967.765
3.7 Because international law prohibits the annexation of occupied territory,
Israel’s annexation of occupied East Jerusalem is internationally wrongful and
without legal effect.
3.8 The UN General Assembly and UN Security Council have repeatedly
recognized as much. Indeed, as early as 1967, the UN General Assembly issued
Resolution 2253 (ES-V), which called the measures annexing Jerusalem “invalid”
and “[c]all[ed] upon Israel to rescind” them.766 The Security Council likewise
deemed Israel’s 1967 measures “invalid” and called upon Israel to desist from
763 Israel, Basic Law: Jerusalem, Capital of Israel (1980), available at https://tinyurl.com/2b7ztwtv,
art. 1.
764 M. Elon et al., Temply Mount Faithful – Amutah Et Al v. Attorney-General, Inspector-General
of the Police, Mayor of Jerusalem, Minister of Education and Culture, Director of the Antiquities
Division, Muslim WAQF - In the Supreme Court Sitting as the High Court of Justice [September
23, 1993],” 45(3) CATHOLIC UNIVERSITY LAW REVIEW 866 (1996), available at
https://tinyurl.com/4etvmmud, para. 34.
765 Israel, Basic Law: Jerusalem, Capital of Israel (1980), available at https://tinyurl.com/2b7ztwtv,
art. 5.
766 UNGA, Resolution 2253 (ES-V), Measures taken by Israel to change the status of the city of
Jerusalem, UN Doc. A/RES/2253(ES-V) (4 July 1967) (Dossier No. 1200).
185
taking any further action which “tends to change the status of Jerusalem”.767 Both
bodies issued similar statements in the following years.768
B. ISRAEL’S DE FACTO ANNEXATION OF AREA C OF THE WEST BANK
VIOLATES INTERNATIONAL LAW
3.9 In the Wall Advisory Opinion, the Court warned that the establishment of
Jewish Israeli settlements in the West Bank, combined with the construction of a
barrier wall in the West Bank and East Jerusalem and its associated regime,769
could “be tantamount to de facto annexation”.770 Whether or not Israel’s actions
amounted to a de facto annexation then, they unmistakably do now. In the nearly
20 years since 2004, Israel has created additional “irreversible facts on the
ground”771 that evidence its de facto annexation of Area C of the West Bank in
violation of international law, as well as its intent eventually to annex all of the
West Bank, excluding East Jerusalem.
3.10 The former OPT Special Rapporteur Michael Lynk has proposed four
indicia for assessing whether facts on the ground have crystallized into a de facto
767 UNSC, Resolution 252 (1968), On the Status of Jerusalem, UN Doc. S/RES/252 (1968) (21 May
1968) (Dossier No. 1247).
768 See, e.g., UNSC, Resolution 478 (1980), On the Status of Jerusalem, UN Doc. S/RES/478 (1980)
(20 Aug. 1980) (Dossier No. 1274) (hereinafter, “UNSC Res. 478 (1980)”), para. 3; UNSC Res.
2334 (2016), Preamble; ibid., paras. 2, 3; UNGA, Resolution 36/120, Question of Palestine, UN
Doc. A/RES/36/120 (10 Dec. 1981) (Dossier No. 389), Part D, para 6; ibid., Part E, para. 1; UNGA,
Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and the
occupied Syrian Golan, UN Doc. A/RES/77/126 (12 Dec. 2022) (Dossier No. 36) (hereinafter,
“UNGA Res. 77/126”).
769 This “associated regime” refers to the establishment of the part of the West Bank lying between
the Green Line and the Wall as a “Closed Area”. Wall Advisory Opinion, para. 85.
770 Wall Advisory Opinion, para. 121. See also UNGA, Situation of human rights in the Palestinian
territories occupied since 1967, UN Doc. A/73/447 (22 Oct. 2018), para 29.
771 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 75.
186
annexation.772 The UN Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel endorsed that
test.773 The four indicia are:
1. Whether the State is in “effective control of the occupied territory”;774
2. Whether the State has adopted “measures … consistent with
permanency and a sovereign claim over parts or all of the territory”;775
3. Whether the State’s political leaders or institutions have expressed the
intent to “permanently annex parts or all of the occupied territory”; 776
and
4. Whether the State has refused to apply international law, including the
laws of occupation, or to comply therewith, in the occupied territory.777
3.11 Israel’s policies and practices in Area C of the West Bank satisfy all these
criteria. It has therefore illegally annexed the Area C de facto. It has also evidenced
its intent to annex the entire West Bank.
3.12 First, Israel plainly maintains effective control over Area C of the West
Bank. Under the terms of the Oslo Accords and in fact, Israel exercises exclusive
772 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), paras. 30-31.
773 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 13, note 9. See also O. Dajani, “Israel’s Creeping Annexation,” 111 AMERICAN JOURNAL OF
INTERNATIONAL LAW 51 (2017), pp. 52-53.
774 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), para 31.
775 Ibid.
776 Ibid.
777 See ibid.
187
administrative and security functions there, which comprises more than 60 percent
of the West Bank.778
3.13 Second, Israel’s policies and practices in Area C of the West Bank are
consistent with permanency and a sovereign claim over the territory.
3.14 At the most basic level, Israel has clearly demonstrated the permanency of
its occupation and its effective claim of sovereignty over the Area C of West Bank
by maintaining that occupation of the territory for over 55 years—among the
longest-running military occupations in modern history779—despite repeated calls
from the international community to bring it to an end.780
3.15 Israel’s permission and facilitation of the expansion of settlements in Area
C, in the face of the Court’s clear pronouncement that they are illegal under
international law, is itself evidence of permanency and a claim of sovereignty. As
the former OPT Special Rapporteur pointed out, “the political purpose of the Israeli
settlement enterprise has always been to establish sovereign facts on the
ground”.781
778 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), para 51.
779 See “Decisive international action needed to end Israeli occupation: UN experts,” UN News (23
Oct. 2019), available at https://tinyurl.com/2vysdsna.
780 See, e.g., UNSC Res. 242 (1967), para. 1 (calling on Israel to withdraw its armed forced from
“territories occupied in [] recent conflict”); UNGA, Resolution 247, Permanent sovereignty of the
Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab
population in the occupied Syrian Golan over their natural resources, UN Doc. A/RES/71/247 (21
Dec. 2016) (Dossier No. 266), Preamble (General Assembly calling for “without delay an end to
the Israeli occupation”).
781 UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN Doc.
A/73/447 (22 Oct. 2018), para. 49.
188
3.16 The specific measures undertaken by Israel to establish and maintain these
settlements, described above in Chapter 2 are also consistent with permanency and
a claim of sovereignty. They have the effect of converting territory in Area C into
de facto Israeli territory. The most salient of those measures are: (i) supporting and
facilitating the establishment and maintenance of Jewish Israeli settlements,
permanently changing the demographic composition of the territory and expanding
Israeli control over it;782 (ii) applying Israeli domestic law to Jewish Israeli
settlers;783 (iii) constructing and maintaining the Wall, which incorporates
Palestinian territory into Israel;784 and (iv) seizing and exploiting land and natural
resources.785
3.17 Third, Israel and its political leaders have expressed an intent to annex
permanently parts of all of the occupied territory.786 Official publications of the
State of Israel treat the entire West Bank as part of its territory. For example the
Israeli Ministry of Foreign Affairs’ official briefing paper defending Israeli
settlements in the West Bank explicitly states that Israel “has valid claims to title
in this territory,” which it refers to it as “Judea and Samaria”.787 This claim is
reflected in the official map published by the Survey of Israel, which shows no
782 See supra Chapter 2, §§ I and II.
783 See supra Chapter 2, §§ V(A), (C).
784 See supra Chapter 2, paras. 2.25, 2.70-2.74.
785 See supra Chapter 2, § VII.
786 See UNGA, Situation of human rights in the Palestinian territories occupied since 1967, UN
Doc. A/73/447 (22 Oct. 2018), para 31(c); BADIL, Creeping Annexation: A Pillar of the Zionist-
Israeli Colonization of Mandatory Palestine (Working Paper No. 25) (Dec. 2020). See also O.
Dajani, “Israel’s Creeping Annexation,” 111 AMERICAN JOURNAL OF INTERNATIONAL LAW 51
(2017), pp. 52-53.
787 Ministry of Foreign Affairs of Israel, “General Information: Israeli Settlements and International
Law” (30 Nov. 2015), available at https://tinyurl.com/bdheme9b.
189
separation between Israel and the West Bank.788 That map is reproduced as Figure
3.1 following page 190. As the Court will see, it effectively erases the distinction
between Israel and the OPT.
3.18 Israel’s political leaders have also, since 1967, consistently expressed the
intent to act as a sovereign in the West Bank. Following the occupation, the Israeli
Foreign Minister declared Israel’s ambition that “the authority of the Israel
Government extend[] from the Jordan [River] [i.e., eastern boundary of the West
Bank] to the Suez Canal [i.e., including the Sinai Peninsula]”.789 In 1979, the Prime
Minister of Israel, Menachem Begin, stated that “the green line [separating Israel
from the West Bank] no longer exists—it has vanished forever”.790
3.19 Israel’s 21st century leaders continue to affirm this intent. For example,
upon Israeli Prime Minister Netanyahu’s re-election in 2020, he stated that he
planned formally to “extend [Israel’s] sovereignty to areas of the West Bank”.791
And in May 2022, then-Israeli Prime Minister Naftali Bennett, while addressing
settlers in Elkana, a settlement in the West Bank, made clear his view that the
settlements formed an integral part of the State of Israel: “With the help of God,
we will also be here at the celebrations of Elkana’s fiftieth and seventy-fifth, 100th,
200th and 2,000th birthdays, within a united and sovereign Jewish State in the Land
of Israel.”792
788 See GovMap, “Survey of Israel” (last accessed: 12 July 2023), available at
https://tinyurl.com/5726439z.
789 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 39.
790 Ibid.
791 “Netanyahu said to tell Likud MKs: West Bank annexation on for July,” Times of Israel (25 May
2020), available at https://tinyurl.com/jy6z5era.
792 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
190
3.20 Fourth, Israel steadfastly and adamantly refuses to apply or comply with
international law, including the law of occupation, in the West Bank
3.21 Israel does not apply IHL in the West Bank. In particular, it does not
consider that the Fourth Geneva Convention (“GC IV”) applies to the West Bank.
It has held and maintained this view since the proceedings in the Wall Advisory
Opinion, in which it argued that the GC IV did not apply in the West Bank because
it “is ‘not a territory of a High Contracting Party as required by the Convention’”.793
That position has not changed, as reflected in Israel’s 2021 statement defending
Israeli settlements in the West Bank. It argued there that that “there was no previous
legitimate sovereign [over the West Bank]”.794 Israel’s statement led the General
Assembly to “demand[] that Israel accept the de jure applicability of the
Convention in the Occupied Palestinian Territory”.795
3.22 Second, Israel’s policies and practices in the West Bank violate various
obligations under international law, particularly IHRL, IHL and the prohibition on
crimes against humanity. These violations are detailed in Sections II, III, and IV
below. The occupation also permanently deprives the Palestinian people of the
right to self-determination and constitutes a regime of apartheid as detailed in
Chapter 4. Qatar respectfully refers the Court to those sections.
53 (citing Prime Minister Bennett, during a visit to the Elkana local council to mark its forty-fifth
anniversary (17 May 2022)).
793 Wall Advisory Opinion, para. 90.
794 Ministry of Foreign Affairs of Israel, “General Information: Israeli Settlements and International
Law” (30 Nov. 2015), available at https://tinyurl.com/bdheme9b.
795 UNGA, Report of the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Palestinian People and Other Arabs of the Occupied Territories, UN Doc. A/70/497
(24 Nov. 2015), p. 14.
Figure 3.1
191
***
3.23 For all the foregoing reasons, Israel has illegally annexed Area C of the
West Bank de facto.
II. The Conduct of the Occupation Violates
International Human Rights Law
3.24 In carrying out its of occupation of the OPT, Israel has committed numerous
violations of IHRL.
3.25 As concerns IHRL, the Court previously held in the Wall Advisory Opinion
that the International Covenant on Civil and Political Rights (“ICCPR”),796 the
International Covenant on Economic, Social and Cultural Rights (“ICESCR”),797
and the Convention on the Rights of the Child (“CRC”)798 apply within the OPT.
3.26 Other human rights instruments also apply, including the International
Convention on the Elimination of All Forms of Racial Discrimination
(“CERD”)—to which Israel is a State Party.799 It does not matter that Israel does
not have sovereignty over the OPT. In its Order granting provisional measures in
the case concerning Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), where
violations of Articles 2 and 5 of the CERD were alleged, the Court observed that
“there is no restriction of a general nature in CERD relating to its territorial
application” and that “neither Article 2 nor Article 5 of CERD … contain a specific
796 Wall Advisory Opinion, para. 111.
797 Ibid., para. 112.
798 Ibid., para. 113.
799 UN, “Status of Treaties: CERD” (last accessed: 15 July 2023), available at
https://tinyurl.com/bdeawtc4.
192
territorial limitation”.800 Accordingly, it ruled that “these provisions of CERD
generally appear to apply, like other provisions of instruments of that nature, to the
actions of a State party when it acts beyond its territory”.801
3.27 The Court’s position accords with the views of the CERD Committee. As
early as 1998, the CERD Committee made clear that “Israel is accountable for
implementation of the [CERD] … in all areas over which it exercises effective
control”.802 And following the Court’s order in Georgia v. Russian Federation, the
CERD Committee stated that the argument that the CERD “does not apply in the
[OPT] … cannot be sustained under the letter and spirit of the Convention, or under
international law, as also affirmed by the International Court of Justice”.803 More
recently, in its decision on jurisdiction over the inter-State communication
submitted by the State of Palestine against Israel, the CERD Committee found that
Israel “has an obligation to comply with the Convention with respect to the
OPT”.804 Because Palestinians are undeniably a national or ethnic group distinct
from Jewish Israelis, the CERD Convention applies to discriminatory distinctions
Israel makes between Palestinians and Jewish Israelis.
800 Case Concerning Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Order on Request for Provisional
Measures, I.C.J. Reports 2008, p. 353, para. 109.
801 Ibid.
802 CERD Committee, Racial Discrimination Convention – Consideration of Israel’s combined 7th
to 9th periodic reports, UN Doc. CERD/C/304/Add.45 (30 Mar. 1998), para. 12.
803 CERD Committee, Consideration of reports submitted by States parties under article 9 of the
Convention: concluding observations of the Committee on the Elimination of Racial
Discrimination: Israel, UN Doc. CERD/C/ISR/CO/13 (14 June 2007), para. 32.
804 CERD Committee, Inter-State communication submitted by the State of Palestine against Israel:
preliminary procedural issues and referral to the Committee, UN Doc. CERD/C/100/3 (15 June
2021), para. 2.9.
193
3.28 The Convention on the Elimination of All Forms of Discrimination against
Women (“CEDAW”)—to which Israel is also a Party805—also governs Israel’s
conduct in the OPT. Like the CERD, it does not contain any restriction relating to
its territorial application. The Committee on the Elimination of Discrimination
against Women (“CEDAW Committee”) explained in its General Comment No.
28: “The obligations of States parties apply … without discrimination both to
citizens and non-citizens … within their territory or effective control, even if not
situated within the territory. States parties are responsible for all their actions
affecting human rights, regardless of whether the affected persons are in their
territory.”806
3.29 This section describes Israel’s most egregious human rights violations. As
is demonstrated in Sections III and IV, some of these violations also amount to
violations of Israel’s obligations under IHL as an occupying Power and constitute
war crimes or crimes against humanity.
A. ISRAEL VIOLATES THE RIGHTS TO LIFE AND SECURITY OF PERSON
3.30 The Right to Life. Article 6(1) of the ICCPR guarantees the right to life
and provides that “[n]o one shall be arbitrarily deprived of life”. This right “must
be respected and ensured without distinction of any kind, such as race”.807 Article
6 of the CRC recognizes the child’s “inherent right to life” and requires States to
“ensure to the maximum extent possible the survival and development of the child”.
805 UN, CEDAW Information Note 4: List of State Parties, available at
https://tinyurl.com/ye258y6m.
806 CEDAW Committee, General recommendation No. 28 on the core obligations of States parties
under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women,
UN Doc. CEDAW/C/GC/28 (16 Dec. 2010), para. 12.
807 HRC, General Comment No. 36, UN Doc. CCPR/C/GC/36 (3 Sept. 2019), para. 61.
194
3.31 To comply with its obligation to respect this right in using military force,
such as in Gaza, Israel must refrain from “targeting … civilians, civilian objects
and objects indispensable to the survival of the civilian population, indiscriminate
attacks” and “fail[ing] to apply the principles of precaution and proportionality”.808
3.32 In carrying out law enforcement activities in the West Bank (including East
Jerusalem), according to the Human Rights Committee (“HRC”)’s General
Comment No. 36, Israel is under an obligation to “take all necessary measures to
prevent arbitrary deprivation of life by [its] law enforcement officials, including
soldiers charged with law enforcement missions”.809 Accordingly, “[t]he use of
potentially lethal force for law enforcement purposes is an extreme measure that
should be resorted to only when strictly necessary in order to protect life or prevent
serious injury from an imminent threat”.810 Israel must also “investigate and, where
appropriate, prosecute the perpetrators of … incidents [of potentially unlawful
deprivations of life], including incidents involving allegations of excessive use of
force with lethal consequences”.811
3.33 The Right to Security of Person. Article 9(1) of the ICCPR establishes
“the right to … security of person”. According to the HRC, “[t]he right to security
of person protects individuals against intentional infliction of bodily or mental
injury, regardless of whether the victim is detained or non-detained. For example,
officials of States parties violate the right to personal security when they
808 Ibid., para. 64.
809 Ibid., para. 13.
810 Ibid., para. 12.
811 HRC, General Comment No. 36, UN Doc. CCPR/C/GC/36 (3 Sept. 2019), para. 27.
195
unjustifiably inflict bodily injury”.812 Article 5(b) of the CERD requires Israel to
guarantee this right without distinction as to ethnic origin.
3.34 Israel’s military attacks on Gaza plainly violate its obligations to respect
the rights to life and security of person. The excessive and indiscriminate force
deployed during those attacks, described above in paragraphs 2.108-2.129, targets
civilians and thus amount to arbitrary deprivations of the right to life and the right
to security of person. Further, by subjecting Palestinians living in Gaza to the
constant threat of violence, Israel violates Article 9(1) of the ICCPR by
“intentional[ly] inflicti[ng] … mental injury”813 on them. Israel’s violent measures
to enforce the blockade of Gaza, described in paragraphs 2.130-2.136, likewise
employ excessive and disproportionate force inconsistent with its obligations to
respect the rights to life and security of person.
3.35 In the West Bank (including East Jerusalem), Israel violates its obligations
to respect and ensure the rights to life and security of person in carrying out law
enforcement activities. These include the killing of unarmed civilians during
routine law enforcement situations (described in paragraphs 2.141-2.153); the
excessive use of force against civilians (including journalists) in the context of
protests or other confrontations (described in paragraphs 2.154-2.159 and 2.261-
2.266); the excessive use of force in heavily populated civilian areas, including
refugee camps, in the course of military security operations (described in
paragraphs 2.160-2.169); and extrajudicial executions, including targeted
assassinations and the execution of suspected attackers who have been disarmed
(described in paragraphs 2.170-2.172). Moreover, Israel’s failure to redress
violations of the rights to life and security of person carried out by members of its
812 HRC, General Comment No. 35, UN Doc. CCPR/C/GC/35 (16 Dec. 2014), para. 9.
813 Ibid.
196
security forces or the IDF (described in paragraphs 2.137-2.138, 2.148-2.151,
2.173, 2.177-2.178, and 2.164), including through its tolerance of settler violence
(described in paragraphs 2.179-2.185), also constitutes a violation of those rights.
3.36 Because Israel’s violations of the right to security of person are targeted at
Palestinians and not Israeli Jews, they amount to a violation of Article 5(b) of the
CERD. Likewise, because measures violating the rights to life and security of
person also affect children, they violate Article 6 of the CRC.
3.37 Israel’s violations of Palestinians’ rights to life and security of person have
been the subject of concluding observations by various human rights treaty bodies.
For the sake of brevity, Qatar here (and with respect to each right discussed in the
sections below) highlights two especially pertinent findings:
• In 2013, the Committee on the Rights of the Child (“CRC Committee”)
expressed its concern that “children on both sides of the conflict
continue to be killed and injured, children living in the OPT being
disproportionately represented among the victims” and that “hundreds
of Palestinian children have been killed and thousands injured over the
reporting period as a result of the State party military operations,
especially in Gaza where [Israel] proceeded to air and naval strikes on
densely populated areas with a significant presence of children, thus
disregarding the principles of proportionality and distinction”.814 It
further noted with concern that “in most of the cases Israeli military
forces not only fail to intervene to prevent violence and to protect
children”, and that “in most of the cases, perpetrators are not brought to
justice and enjoy full impunity for their crimes”.815
• In 2022, the HRC expressed its concern about the “continuing and
consistent reports of the excessive use of lethal force by the Israeli
814 CRC Committee, Concluding observations on the second to fourth periodic reports of Israel,
adopted by the Committee at its sixty-third session, UN Doc. CRC/C/ISR/CO/2-4 (7 July 2013),
para. 25.
815 Ibid., para. 25(b).
197
security forces against Palestinian civilians, including children, and the
lack of accountability for these acts, resulting in a general climate of
impunity”816 and in particular, the “excessive force used in policing
demonstrations, including the Great March of Return between March
2018 and December 2019, during which 183 people, including children,
paramedics, journalists and persons with disabilities, were shot
dead”.817 The Committee also expressed its concern about the fact “that
no perpetrator has been brought to justice for excessive force used
against 260 Palestinians, including children, during the escalation of
hostilities in Gaza in May 2021”.818
3.38 The OHCHR, mandate holders, and commissions of inquiry have reached
similar conclusions.819
B. ISRAEL VIOLATES THE RIGHTS TO LIBERTY OF PERSON AND
TO BE FREE FROM TORTURE
3.39 The Right to Liberty of Person. Article 9(1) of the ICCPR provides:
Everyone has the right to liberty … of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.
816 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 26.
817 Ibid.
818 Ibid.
819 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 50(a); UNGA, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept.
2022), para. 64; Human Rights Council, Human rights situation in the Occupied Palestinian
Territory, including East Jerusalem, and the obligation to ensure accountability and justice, UN
Doc. A/HRC/52/75 (13 Feb. 2023), paras. 5, 17, 26; Human Rights Council, Israeli settlements in
the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan,
UN Doc. A/HRC/49/85 (28 Apr. 2022), paras. 52, 55; Human Rights Council, Report of the
Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9 May 2022), para. 61.
198
3.40 Article 37 of the CRC establishes similar protections specifically for
children.
3.41 The HRC has determined that, a general matter, the “notion of
‘arbitrariness’ … must be interpreted … to include elements of inappropriateness,
injustice, lack of predictability and due process of law, as well as elements of
reasonableness, necessity and proportionality”.820 Unjust, unreasonable,
unnecessary or disproportionate arrest or detention thus violates the right under
Article 9(1). “Enforced disappearances … constitute a particularly aggravated form
of arbitrary detention.”821
3.42 Moreover, Israel’s obligation to respect this right imposes strict
requirements on it when it subjects Palestinians to administrative detentions for
purported security reasons. According to the HRC, administrative detention,
carried out “not in contemplation of prosecution on a criminal charge,” is
permissible only insofar as it is not arbitrary.822 “[D]etention as punishment for the
legitimate exercise of the rights as guaranteed by the [ICCPR] is arbitrary”.823
Moreover, for the administrative detention of a given detainee to be permissible, it
must be the only way to guard against a legitimate threat posed by the particular
detainee.824 Once detained, Article 9 of the ICCPR also obliges Israel to permit
detainees to avail themselves of “[p]rompt and regular review by a court or other
tribunal” of their detention, along with “access to independent legal advice”. 825
820 HRC, General Comment No. 35, UN Doc. CCPR/C/GC/35 (16 Dec. 2014), para. 12.
821 Ibid., para. 17.
822 Ibid., para. 15.
823 Ibid., para. 17.
824 Ibid., para. 15.
825 Ibid.
199
3.43 The Right to Be Free from Torture and Cruel, Inhuman or Degrading
Treatment. Article 7 of the ICCPR provides that “[n]o one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”. Articles 2 and
16 of the Convention Against Torture (“CAT”), to which Israel is also a party,
establish similar prohibitions. According to the HRC, Israel must refrain from
subjecting individuals “to acts that cause physical pain … [and] to acts that cause
mental suffering to the victim”.826 Article 37(a) of the CRC is to the same effect.
Acts of torture include denying the family of a detained person the right to know
the truth about his or her whereabouts and the right to have their family member’s
remains returned to them.827
3.44 Israel’s practices of arbitrary arrest, administrative detention, and the
conditions in which administrative detainees and prisoners are held violate its
obligations in respect of the right to liberty of person and to be free from torture.
This includes:
• The draconian practices to which suspects detained and arrested,
including children, are subjected (described in paragraphs 2.191-2.200),
and withholding information regarding the whereabouts of detained
children from their parents (as described in paragraph 2.197);
• Its widespread practice of subjecting Palestinians, including children
and journalists, to administrative detention not justified by security
concerns but instead used to stifle dissent or otherwise punish
Palestinians (described in paragraphs 2.201-2.209 and 2.267-2.270);
826 HRC, General Comment No. 20, UN Doc. HRI/GEN/1/Rev.1 (29 July 1994), para. 5.
827 See Human Rights Council, Report of the Working Group on Enforced or Involuntary
Disappearances, UN Doc. A/HRC/16/48 (26 Jan. 2011), p. 15; CAT Committee, Decision of the
Committee against Torture under article 22 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment concerning Communication No. 456/2011, UN
Doc. CAT/C/54/D/456/2011 (26 June 2015), para. 6.4.
200
• Denying those detained administratively the ability effectively to
challenge their detention (described at paragraphs 2.201-2.202);
• Subjecting those in administrative detention and in prison to torture
and ill treatment (described in paragraph 2.205); and
• Desecrating and withholding the corpses of deceased Palestinians
(described in paragraphs 2.175-2.176).
3.45 Several human rights treaty bodies have expressed concern about, and
condemned, Israel’s violations of Palestinians’ rights to liberty of person and to be
free from torture, including:
• In 2022, the HRC condemned “the widespread practice of arbitrary
arrest and detention, including in facilities located in Israel, of
Palestinians, including journalists, human rights defenders and
children”.828 It noted with concern that Israel subjected these
individuals to “administrative detention … without charge or trial and
without the guarantee of fundamental legal safeguards”.829
• The HRC also stated it was “deeply concerned about reports of the
widespread and systematic practice of torture and ill-treatment by Israel
Prison Service guards and the Israeli security forces against
Palestinians, including children, at the time of arrest and in detention. It
is particularly concerned about the use of physical and psychological
violence, sleep deprivation, stress positions and prolonged solitary
confinement, including against children and detainees with intellectual
or psychosocial disabilities.”830
828 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 34.
829 Ibid. See also CAT, Initial report submitted by the State of Palestine under article 19 of the
Convention, due in 2015, UN Doc. CAT/C/PSE/CO/1 (26 Aug. 2019), para. 24.
830 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 30. See also CAT, Initial report submitted by the State of
Palestine under article 19 of the Convention, due in 2015, UN Doc. CAT/C/PSE/CO/1 (26 Aug.
2019), para. 28 (CAT stated it was troubled by “consistent reports indicating that persons in custody,
including in the facilities under the authority of the security forces and intelligence services in both
201
3.46 The UN Secretary-General, OHCHR, mandate holders, commission of
inquiry, and fact-finding missions have reached similar conclusions.831
C. ISRAEL VIOLATES THE RIGHT TO LIBERTY OF MOVEMENT AND
FREEDOM TO CHOOSE ONE’S OWN RESIDENCE
3.47 Article 12(1) of the ICCPR guarantees the rights to freedom of movement
and to choose one’s own residence to “everyone lawfully within the territory of a
state[], within that territory”. Article 12(2) guarantees the right “to leave any
country, including [one’s] own” and Article 12(4) forbids states from “arbitrarily
depriv[ing] [one] of the right to enter [one’s] own country”.
3.48 Israel may only restrict Palestinians’ rights to movement and residence
insofar as restrictions are “necessary to protect national security, public order
the West Bank and the Gaza Strip, are subjected to torture or ill-treatment, in particular during the
investigation stage of proceedings.”).
831 See, e.g., Human Rights Council, Human rights situation in the Occupied Palestinian Territory,
including East Jerusalem, and the obligation to ensure accountability and justice, UN Doc.
A/HRC/52/75 (13 Feb. 2023), para. 45 (“During the reporting period, OHCHR continued to
document allegations of ill-treatment, in some cases possibly amounting to torture, in Palestinian
detention facilities in the West Bank and Gaza.”); Human Rights Council, Report of Special
Rapporteur S. M. Lynk on the situation of human rights in the Palestinian territories occupied since
1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para. 50(a) (“the military courts incarcerate
thousands of Palestinians on security charges through a judicial system that offers few of the
international protections regarding due process or the prevention of arbitrary arrest and detention.
Additionally, hundreds of Palestinians languish in administrative detention under open-ended
confinement.”); ibid., para. 50(e) (“torture continues to be used in practice by Israel against
Palestinians in detention. Methods of torture include sleep deprivation, beating and slapping,
humiliation, unhygienic conditions and extended shackling in contorted positions.”); Human Rights
Council, Human rights situation in the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/HRC/37/42 (21 Feb. 2018), para. 61 (there is a “high risk that Palestinians face of being
arbitrarily deprived of their liberty, both by the Israeli Security Forces and the Preventive Security
Services. This is especially the case for Palestinians openly opposing the Israeli occupation, or the
policies of their government in the West Bank or in Gaza. Journalists and human rights defenders
have been particularly targeted within this context.”); UNGA, Israeli practices affecting the human
rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/76/333 (20 Sept. 2021) (Dossier No. 862), para. 21 (“Arbitrary arrest, detention and illtreatment
increasingly targeted Palestinian women, including human rights defenders, leaders,
journalists and students.”).
202
(ordre public), public health or morals or the rights and freedoms of others”.832 As
the Court recognized in the Wall Advisory Opinion,833 the HRC’s General
Comment No. 27 makes clear that limitations on the exercise of these rights “must
conform to the principle of proportionality” and “must be the least intrusive
instrument amongst those which might achieve the desired result”.834 Article
5(d)(i) of the CERD requires Israel to guarantee this right without distinction as to
ethnic origin.
3.49 Israel’s restrictions on travel between, within, into and out of the West
Bank and Gaza (described in paragraphs 2.63 and 2.69-2.85) violate its obligation
to respect the right to movement. As stated, Israel agreed, as part of the Oslo
Accords, that the West Bank and Gaza form “a single territorial unit”.835 Moreover,
the HRC has made clear that as the internationally-recognized occupied Palestinian
territories, the West Bank and Gaza should be treated together as “the territory of
a state” in which all individuals lawfully present have the rights to movement and
residence.836
3.50 Yet, as explained in paragraphs 2.63-2.85 and 2.91-2.93, it is extremely
difficult for Palestinians to travel between the West Bank and Gaza, to travel within
those areas, to leave the OPT, or to re-enter the OPT from abroad. These broadly
applied restrictions are not proportionate to, nor necessary to guard against, any
832 International Covenant on Civil and Political Rights (16 Dec. 1966), 999 U.N.T.S. 171
(hereinafter, “ICCPR”), arts. 12(1), (3).
833 Wall Advisory Opinion, para. 136.
834 HRC, General Comment No. 27, UN Doc. CCPR/C/21/Rev.1/Add.9 (1 Nov. 1999), paras. 13-
14.
835 Oslo II, art. XI(1). Indeed, Israel has made specific undertakings to permit regular “safe passage”
between the West Bank and Gaza. Protocol Concerning Safe Passage, art. 1; Agreed Principles for
Rafah Crossing.
836 See HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 36.
203
security threat and, as such, violate the right to movement. Indeed, the HRC has
held that restrictions on an individual from “travelling internally without a specific
permit” do not “meet the test of necessity and the requirements of
proportionality”.837
3.51 Among others, the restrictions Israel places on freedom of movement within
the OPT that do not meet the requirements of necessity and proportionality, and
therefore violate the guarantee of freedom of movement in Article 12(1), include:
• Israel’s restrictions on movement within the West Bank through a
panoply of checkpoints and physical impediments to travel
(described in paragraphs 2.77-2.81);
• The impediments on free movement created by the separation wall,
including the requirement to obtain permits to travel to the “seam zone”
and the periodic closure of access thereto (described in paragraphs 2.70-
2.74)—which already in 2004 the Court found do not meet the
requirements of necessity and proportionality;838
• The maintenance of separate and segregated roads in the West Bank
(described in paragraphs 2.82-2.84);
• The requirement to obtain permits to enter East Jerusalem from the
rest of the West Bank (described in paragraphs 2.75);
• The blockade of Gaza, including severe restrictions on travel from
Gaza to the West Bank and East Jerusalem (described in paragraphs
2.91-2.93);
• The enforcement of land and sea “buffer zones” in Gaza (described
in paragraphs 2.100-2.101); and
837 HRC, General Comment No. 27, UN Doc. CCPR/C/21/Rev.1/Add.9 (1 Nov. 1999), para. 16.
838 Wall Advisory Opinion, para. 136.
204
• The bans on journalists’ ability to access certain areas of the OPT
(described in paragraphs 2.271-2.272).
3.52 The restrictions on travel into and out of the OPT also violate the right
to freedom of movement. The broadly applied restrictions on Palestinians’ ability
to leave the OPT (described in paragraphs 2.75-2.76) are not necessary or
proportionate and violate Article 12(2). And the impediments Palestinians face in
returning to the OPT from abroad, including the denial of residency rights in the
OPT for individuals who were displaced in 1948 and their descendants, and other
Palestinians who were not registered in the Palestinian population registry
(described in paragraphs 2.29-2.32) violate Article 12(4), especially given that, as
the HRC has recognized, “there are few, if any, circumstances in which deprivation
of the right to enter one’s own country could be reasonable”.839
3.53 Israel’s measures restricting Palestinians’ ability to reside in the West
Bank (including East Jerusalem) (described in paragraphs 2.28-2.46) violate its
obligation to respect the right to freedom to choose one’s own residence. The
indiscriminate application of those restrictions cannot be said to be proportionate
or necessary to achieving any security objective.
3.54 Further, because these restrictions apply to Palestinians but not to Jewish
Israelis, they contravene Article 5(d)(i) of the CERD, which requires that the rights
to freedom of movement and to choose one’s own residence must be respected and
guaranteed without regard to ethnic origin.
839 HRC, General Comment No. 27, UN Doc. CCPR/C/21/Rev.1/Add.9 (1 Nov. 1999), para. 21.
205
3.55 Israel’s restrictions on Palestinians’ movement have been the subject of
concluding observations by various human rights treaty bodies, including:840
• In 2022 the HRC expressed “its deep concern about the continuing
restrictions on freedom of movement imposed by the State party
throughout the Occupied Palestinian Territory, including East
Jerusalem, through its discriminatory permit regime and the designation
of access-restricted areas”.841 And with respect to Gaza, it was “deeply
concerned about … [the blockade’s] adverse impact on the enjoyment
of the right to freedom of movement”. 842
• In 2020, the CERD Committee stated that it was “appalled” at the
discriminatory “implementation of a complex combination of
movement restrictions consisting of the Wall, the settlements,
roadblocks, military checkpoints, the obligation to use separate roads
and a permit regime”.843 It also “note[d] with concern that the blockade
continues to violate the right to freedom of movement”.844
3.56 Israel’s restrictions on Palestinians’ residency rights have also been the
subject of concluding observations by various human rights treaty bodies.845 For
example, with respect to residency in East Jerusalem, in 2020, the CERD
840 See CEDAW Committee, Concluding observations on the sixth periodic report of Israel, UN
Doc. CEDAW/C/ISR/CO/6 (17 Nov. 2017), para. 31(a) (reiterating its prior recommendation that
Israel “Immediately put an end to all human rights abuses and violations perpetrated against women
and girls in the Occupied Palestinian Territory and remove any restrictions on freedom of
movement”); CEDAW Committee, Concluding observations of the Committee on the Elimination
of Discrimination against Women, UN Doc. CEDAW/C/ISR/CO/5 (5 Apr. 2011), para. 23.
841 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 36.
842 Ibid., para. 38.
843 2020 CERD Concluding Observations, para. 22.
844 Ibid., para. 44.
845 See CEDAW Committee, Concluding observations on the sixth periodic report of Israel, UN
Doc. CEDAW/C/ISR/CO/6 (17 Nov. 2017), para. 31(a) (reiterating its prior recommendation that
Israel “Immediately put an end to all human rights abuses and violations perpetrated against women
and girls in the Occupied Palestinian Territory and remove any restrictions on freedom of
movement”); CEDAW Committee, Concluding observations of the Committee on the Elimination
of Discrimination against Women, UN Doc. CEDAW/C/ISR/CO/5 (5 Apr. 2011), para. 23.
206
Committee expressed concern over “Amendment No. 30 of 2018 to the already
discriminatory Entry into Israel Law (Law No. 5712-1952), which grants the Israeli
Minister of Interior broad discretion to revoke the permanent residency permit of
Palestinians living in East Jerusalem”.846 The amended law imposes
“disproportionate and adverse restrictions” on Palestinians’ ability to reside in East
Jerusalem and permits the arbitrary “withdrawal of [residency] permits”.847
3.57 The UN Secretary-General, OHCHR, mandate holders, and commissions
of inquiry have reached similar conclusions.848
D. ISRAEL VIOLATES THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION
AND THE RIGHT OF PEACEFUL ASSEMBLY
3.58 The Right to Freedom of Opinion and Expression. Article 19 of the
ICCPR protects the rights to freedom of opinion and expression. According to the
HRC: “This right includes the expression and receipt of communications of every
form of idea and opinion capable of transmission to others…. It includes political
846 2020 CERD Concluding Observations, para. 15.
847 Ibid., para. 24.
848 See UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 43; Human
Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para. 50(b);
UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
paras. 20, 55, 58, 59; Human Rights Council, Human rights situation in the Occupied Palestinian
Territory, including East Jerusalem, and the obligation to ensure accountability and justice, UN
Doc. A/HRC/52/75 (13 Feb. 2023), paras. 13, 14, 35; Human Rights Council, Israeli settlements in
the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan,
UN Doc. A/HRC/49/85 (28 Apr. 2022), paras. 10, 34, 35, 52; Human Rights Council, Report of the
Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9 May 2022), para. 43.
207
discourse, commentary … on public affairs … discussion of human rights,
journalism, cultural and artistic expression, teaching, and religious discourse.”849
3.59 Article 19(3) provides that this right may only be restricted “[f]or the
protection of national security or of public order (ordre public), or of public health
or morals”. The HRC has made clear such restrictions “must not be overbroad”850
and must be justified by “demonstrat[ing] in specific and individualized fashion the
precise nature of the threat, and the necessity and proportionality of the specific
action taken, in particular by establishing a direct and immediate connection
between the expression and the threat”.851 Article 5(d)(viii) of the CERD requires
Israel to guarantee this right without distinction as to ethnic origin.
3.60 The Right of Peaceful Assembly. Article 21 of the ICCPR guarantees the
“right of peaceful assembly”. The right of peaceful assembly “protects the nonviolent
gathering by persons for specific purposes, principally expressive ones”.852
3.61 Like the right to freedom of expression and opinion, this Article 21 makes
clear that this right may only be subject to restrictions “imposed in conformity with
the law and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public health
or morals or the protection of the rights and freedoms of others”. As the HRC
explains, this means that Israel may not “prohibit, restrict, block, disperse or disrupt
peaceful assemblies without compelling justification, nor … sanction participants
or organizers without legitimate cause”.853 Moreover, “[t]he approach of the
849 HRC, General Comment No. 34, UN Doc. CCPR/C/GC/34 (12 Sept. 2011), para. 11.
850 Ibid., para. 34.
851 Ibid., para. 35.
852 HRC, General Comment No. 37, UN Doc. CCPR/C/GC/37 (17 Sept. 2020), para. 4.
853 Ibid., para. 23.
208
authorities to peaceful assemblies and any restrictions imposed must thus in
principle be content neutral, and must not be based on the identity of the
participants or their relationship with the authorities”.854 Article 5(d)(ix) of the
CERD requires Israel to guarantee this right without distinction as to ethnic origin.
3.62 Israel’s measures targeting journalists and impeding their work violate
its obligations to respect the right to freedom of opinion and expression. The HRC
has stated that, under Article 19 of the ICCPR, “journalists should not be penalized
for carrying out their legitimate activities”,855 including for “being critical of the
government or the political social system espoused by the government”.856 Yet that
is exactly what Israel does (as explained in paragraphs 2.260-2.272).
3.63 Similarly, its measures aimed at repressing Palestinian civil society,
human rights NGOs and political dissent (described in paragraphs 2.273-2.278)
violate the rights to freedom of opinion and expression. According to the HRC,
actions to “muzzl[e] … advocacy of … human rights” are impermissible
restrictions on the rights to freedom of opinion and expression.857 Israel’s acts to
curb the activities of human rights advocates and organizations in the OPT, with
no evidence that such advocates and organizations pose any security risk, cannot
be justified.
3.64 Israel’s actions repressing peaceful protests in the OPT (described in
paragraphs 2.132-2.135, 2.212-2.213, and 2.235), including through violence
(described in paragraphs 2.132 and 2.154-2.159), violate its obligations to respect
854 Ibid., para. 22.
855 HRC, General Comment No. 34, UN Doc. CCPR/C/GC/34 (12 Sept. 2011), para. 46.
856 Ibid., para. 42.
857 Ibid., para. 22.
209
the rights to freedom of expression and opinion and of peaceful assembly. There
are no security reasons justifying Israel’s broad restrictions on, and suppression of,
Palestinian protest against the occupation and Israel’s human rights violations,
which are not “in principle … content neutral”.858
3.65 Israel’s restrictions on the right to freedom of opinion and expression and
the right of peaceful assembly have been the subject of various reports by UN
bodies. For example, in 2022, the HRC called on Israel to “[g]uarantee the effective
protection of journalists and human rights defenders against any kind of threat,
pressure, intimidation, attack and arbitrary arrest and detention”859 and “[r]efrain
from intimidating, harassing, arresting, detaining or prosecuting for terrorist
offences journalists and human rights defenders who are exercising their right to
freedom of expression”.860
3.66 The OHCHR, mandate holders, and commissions of inquiry have reached
similar conclusions.861
858 HRC, General Comment No. 37, UN Doc. CCPR/C/GC/37 (17 Sept. 2020), para. 22.
859 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 49(b).
860 Ibid., para. 49(c).
861 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 50(b); UNGA, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept.
2022), para. 47; Human Rights Council, Human rights situation in the Occupied Palestinian
Territory, including East Jerusalem, and the obligation to ensure accountability and justice, UN
Doc. A/HRC/52/75 (13 Feb. 2023), paras. 29-21; Human Rights Council, Israeli settlements in the
Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, UN
Doc. A/HRC/49/85 (28 Apr. 2022), paras. 30, 41, 55.
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E. ISRAEL VIOLATES THE RIGHTS TO FAMILY UNIFICATION
AND TO A FAMILY LIFE
3.67 Article 23(2) of the ICCPR protects the right “to marry and to found a
family” and Article 17(1) thereof demands respect for the privacy of the family.
Article 10(1) of the ICESCR provides that “[t]he widest possible protection and
assistance should be accorded to the family”.862 Article 5(d)(iv) of the CERD
requires Israel to guarantee the “right to marriage and choice of spouse” without
distinction as to ethnic origin. The HRC has observed that “[t]he right to found a
family implies, in principle, the possibility to … live together”, which “implies the
adoption of appropriate measures … to ensure the unity or reunification of families,
particularly when their members are separated for political, economic or similar
reasons”.863
3.68 For children in particular, Article 16(1) of the CRC provides that “[n]o child
shall be subjected to arbitrary or unlawful interference with his or her … family”.
Interpreting this provision of the CRC, among others, the CRC Committee has
stated that “[p]rotection of the right to a family environment frequently requires
that States not only refrain from actions which could result in family separation or
other arbitrary interference in the right to family life”.864
862 See also Amnesty International, Public Statement: Israel/OPT: Israel must repeal the
discriminatory Citizenship and Entry into Israel Law (19 Feb. 2017), available at
https://tinyurl.com/49wmf6hk, p. 3.
863 HRC, General Comment No. 19, UN Doc. HRI/GEN/1/Rev.1 (27 July 1994), para. 5.
864 CMW, Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of
All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the
Rights of the Child on State obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and return, UN Doc.
CMW/C/GC/4-CRC/C/GC/23 (16 Nov. 2017), para. 27.
211
3.69 Measures that unreasonably impede the unification of families are
inconsistent with Israel’s obligations concerning the respect for, and protection of,
the family.
3.70 Israel’s policies impeding the ability of Palestinians to reside with family
members who are residents of East Jerusalem or of the West Bank (described in
paragraphs 2.34, 2.40, and 2.44) violate the right to family unity and family life, as
do the policies of excluding Palestinians abroad from the OPT (described in
paragraphs 2.29-2.32). For those individuals who are in the OPT, these policies
prevent families from living together in the OPT anywhere but Gaza.
3.71 These policies also violate the CRC because the “deprive[] [children] of
their right to live and grow up in a family environment with both of their parents
or with their siblings and [] thousands live under the fear of being separated because
of the severe restrictions on family reunification”.865 And they plainly violate the
CERD because they prevent Palestinians from living with their family in the West
Bank (including East Jerusalem), but do not similarly restrict Jewish Israeli
families from living together there.866
3.72 Concluding observations by various human rights treaty bodies have
highlighted the UN’s concern about the impact of Israel’s policies on the rights to
family unification and family life, including:
• In 2019, the CESCR expressed its concern “about the fact that the
Citizenship and Entry into Israel Law (Temporary Order) prohibits
Palestinians from the West Bank or the Gaza Strip and who are married
865 CRC Committee, Concluding observations on the second to fourth periodic reports of Israel,
adopted by the Committee at its sixty-third session, UN Doc. CRC/C/ISR/CO/2-4, para. 49.
866 See 2020 CERD Concluding Observations, para. 24 (restrictions on residence in East Jerusalem
“suspend[] the possibility, with certain rare exceptions, of family reunification of Israeli citizens or
residents of East Jerusalem with Palestinian spouses living in the West Bank or Gaza Strip”.)
212
to Israeli or East Jerusalem residents to exercise family reunification
with their spouses and that this prevents them from enjoying their right
to family life” and “that many families in the West Bank, including East
Jerusalem, who have relatives in the Gaza Strip remain separated for
years due to the closure policy of [Israel]”.867
• In 2020, the CERD Committee stated it was “deeply concerned about
the disproportionate and adverse restrictions imposed by the Citizenship
and Entry into Israel Law (Temporary Provision), which suspends the
possibility, with certain rare exceptions, of family reunification of
Israeli citizens or residents of East Jerusalem with Palestinian spouses
living in the West Bank or Gaza Strip”.868
3.73 The OHCHR, mandate holders, and commissions of inquiry have reached
similar conclusions.869
F. ISRAEL VIOLATES THE RIGHT TO WORSHIP
3.74 Article 18 of the ICCPR establishes the right to “manifest [one’s] religion
or belief in worship” and provides that the “[f]reedom to manifest one’s religion or
beliefs may be subject only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health, or morals or the fundamental rights
and freedoms of others”. The HRC has made clear that those “[l]imitations may be
867 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 40.
868 2020 CERD Concluding Observations, para. 24. See also HRC, Concluding observations on the
fifth periodic report of Israel, UN Doc. CCPR/C/ISR/CO/5 (5 May 2022), para. 44 (expressing
concern about the fact “the Citizenship and Entry into Israel Law (Temporary Order) continues to
prohibit family reunification of Israeli citizens with their Palestinian spouses living in the West
Bank or Gaza Strip, or with spouses living in States classified as ‘enemy States’”).
869 See UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 6; UNGA,
Report of the Independent International Commission of Inquiry on the Occupied Palestinian
Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 23;
Human Rights Council, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9
May 2022), para. 46.
213
applied only for those purposes for which they were prescribed and must be directly
related and proportionate to the specific need on which they are predicated.
Restrictions may not be imposed for discriminatory purposes or applied in a
discriminatory manner.”870 Article 5(d)(vii) of the CERD specifically requires
Israel to guarantee this right without distinction as to ethnic origin.
3.75 Israel’s measures impeding the ability of Palestinians to worship,
particularly at sites of deep religious significance (described in paragraphs 2.225-
2.229), and its attacks on worshippers (described in paragraph 2.230) violate its
obligation to respect the right to worship. None are necessary and proportionate
restrictions. The same is true of the restrictions on Palestinians in Gaza traveling
to the West Bank (including East Jerusalem) (described in paragraphs 2.91-
2.93), which prevents them from accessing religiously significant sites there.871
3.76 Moreover, because Jewish Israelis do not face the same restrictions on their
right to worship as Palestinians do (described in paragraph 2.229), these restrictions
violate Article 5(d)(vii) of the CERD.
3.77 Israel’s violations of Palestinians’ right to worship has been the subject of
concluding observations by various human rights treaty bodies, including:
870 HRC, General Comment No. 22, UN Doc. CCPR/C/21/Rev.1/Add.4 (30 July 1993), para. 8.
871 See CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 70 (“Palestinians living in the Gaza Strip are impeded from
visiting religious sites in the West Bank, including East Jerusalem, due to the closure policy of the
State party and that Palestinians living in the West Bank too are restricted from visiting religious
sites in East Jerusalem.”).
214
• In 2010, the HRC noted its concern “at frequent disproportionate
restrictions on access to places of worship for non-Jews”.872
• In 2019, the CESCR expressed its concern about the fact “that
Palestinians living in the Gaza Strip are impeded from visiting religious
sites in the West Bank, including East Jerusalem, due to the closure
policy of [Israel] and that Palestinians living in the West Bank too are
restricted from visiting religious sites in East Jerusalem”.873
3.78 Different UN mandate holders have reached similar conclusions.874
3.79 Restrictions on access to the Holy Sites in Jerusalem also violate the socalled
status quo of Jerusalem, i.e., “specific guarantees of access to the Christian,
Jewish and Islamic Holy Places … without distinction as to nationality, subject to
requirements of national security, public order and decorum”,875 the binding nature
of which Israel has affirmed.876
G. ISRAEL VIOLATES THE RIGHT TO EDUCATION
3.80 Article 13(1) of the ICESCR “recognize[s] the right of everyone to
education”, which “shall be directed to the full development of the human
872 CCPR, Consideration of reports submitted by States parties under article 40 of the Covenant,
Concluding observations of the Human Rights Committee, UN Doc. CCPR/C/ISR/CO/3 (3 Sept.
2010), para. 20.
873 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 70.
874 See Human Rights Council, Report of Special Rapporteur A. Jahangir on freedom of religion or
belief, UN Doc. A/HRC/13/40/Add.1 (16 Feb. 2010), paras. 165-166; OHCHR, Press Release:
Israel: UN expert condemns brutal attacks on Palestinians at Al-Aqsa Mosque (6 Apr. 2023),
available at https://tinyurl.com/22c5pxet.
875 Wall Advisory Opinion, para. 129.
876 See Israel-Jordan General Armistice, art. VIII(2) (recognizing that “agreement in principle
already exists … [on] free access to the Holy Places”); Israel-Jordan Peace Treaty, art. 9(1)
(expressly obliging Israel to “provide freedom of access to places of religious and historical
significance”).
215
personality and the sense of its dignity, and shall strengthen the respect for human
rights and fundamental freedoms”. The CESCR’s General Comment No. 13 states
that “education in all its forms and at all levels shall” be available, accessible,
acceptable and adaptable; “the best interests of the student” is the primary
consideration.877 Article 28 of the CRC likewise recognizes “the right of the child
to education” and Article 10 of the CEDAW requires Israel to take steps to ‘ensure
to [women] equal rights with men in the field of education”. Finally, Article 5(e)(v)
of the CERD requires Israel to guarantee this right without distinction as to ethnic
origin.
3.81 Israel violates Palestinians’ right to education under these instruments by,
inter alia, demolishing and closing schools in the West Bank (described in
paragraph 2.58); bombing schools in Gaza (described in paragraphs 2.124-2.125);
banning Palestinian textbooks and eliminating Palestinian history curricula
(described in paragraph 2.233); and maintaining restrictions on movement that
prevent children (and girls in particular878) from attending schools (described in
paragraph 2.80).879 Jewish Israelis do not face similar restrictions or impediments;
as such, Israel fails to comply with its obligation to guarantee the right to education
without regard to ethnic origin.
877 CESCR, General Comment No. 13, UN Doc. E/C.12/1999/10 (8 Dec. 1999), paras. 6-7.
878 See CEDAW Committee, Concluding observations on the sixth periodic report of Israel, UN
Doc. CEDAW/C/ISR/CO/6 (17 Nov. 2017), para. 30(a) (“[o]wing to restrictions on freedom of
movement in the Occupied Palestinian Territory, Palestinian women and girls continue to be
subjected to harassment at checkpoints and by settlers on their way to and from school and work”.).
879 See CRC Committee, Concluding observations on the second to fourth periodic reports of Israel,
adopted by the Committee at its sixty-third session, UN Doc. CRC/C/ISR/CO/2-4 (4 July 2013),
para. 63(c) (The Committee on the Rights of the Child expressed its concern that “the restrictions
on freedom of movement imposed by the wall, closures, checkpoints and permit regimes continue
to prevent some Palestinian children from attending schools”).
216
H. ISRAEL VIOLATES CULTURAL RIGHTS
3.82 Article 15(1)(a) of the ICESCR guarantees the right “[t]o take part in
cultural life”. The CESCR’s General Comment No. 21 makes clear this includes
the exercise of “cultural practices and with access to cultural goods and
services”,880 including the right to “have access to [one’s own] … cultural and
linguistic heritage” and “the right to be taught about one’s own culture”.881
3.83 The CESCR has explained that any limitations on the exercise of this right
“must pursue a legitimate aim, be compatible with the nature of th[e] right and be
strictly necessary for the promotion of general welfare in a democratic society” and
must “be proportionate, meaning that the least restrictive measures must be taken
when several types of limitations may be imposed”. 882 Furthermore, States must
“[r]espect and protect cultural heritage in all its forms”.883
3.84 Israel has violated its obligation to respect this right by:
• Prohibiting Palestinian cultural gatherings, events and
organizations (described in paragraph 2.234);
• Targeting manifestations of Palestinian identity (described in
paragraph 2.235);
• Banning of the teaching of Palestinian history (described in
paragraph 2.233); and
880 CESCR, General Comment No. 21, UN Doc. E/C.12/GC/21 (21 Dec. 2009), para. 6. See also
ibid., para. 44.
881 Ibid., para. 49(d).
882 Ibid., para. 19.
883 Ibid., para. 50(a).
217
• Destroying and failing to protect Palestinian cultural heritage sites
(described in paragraphs 2.216-2.224).
3.85 Article 5(e)(vi) of the CERD requires Israel to guarantee this right without
distinction as to ethnic origin. But Jewish Israelis face no similar barriers to
exercising their right to take part in cultural life. To the contrary, Israel actively
promotes Jewish Israeli culture and identity while simultaneously suppressing
Palestinian culture and identity. Likewise, Israel’s discriminatory conduct with
respect to Palestinian as compared to Jewish cultural heritage sites (described in
paragraphs 2.217 and 2.221) are also inconsistent with its obligations under the
CERD.
3.86 Israel’s violations of Palestinians’ cultural rights have been the subject of
concluding observations by various human rights treaty bodies:
• In 2013, the CRC Committee expressed its concern “at the removal of
significant information on Palestinian history, heritage, flag and cities
from school textbooks distributed in 2011 to all private and public
schools in East Jerusalem”.884
• In 2019, the CESCR expressed its deep concern “about the severe
impact of the policies adopted by the State party relating to the
Occupied Palestinian Territory, namely the closure policy and the
related permit regime regarding the Gaza Strip and the occupation and
settlement policy in the West Bank, including East Jerusalem, on the
enjoyment of Covenant rights by people living there, including … to
their cultural rights”.885
884 CRC Committee, Concluding observations on the second to fourth periodic reports of Israel,
adopted by the Committee at its sixty-third session, UN Doc. CRC/C/ISR/CO/2-4 (7 July 2013),
para. 65.
885 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 10.
218
3.87 Similar concerns have been voiced by the UN fact finding mission and
commission of inquiry.886
I. ISRAEL VIOLATES THE RIGHT TO AN ADEQUATE STANDARD OF LIVING AND
THE RIGHT TO HEALTH
3.88 Article 11(1) of the ICESCR recognizes “the right of everyone to an
adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions”.
Article 12(1) thereof recognizes “the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health”. Because the enjoyment
and realization of these rights are closely linked—indeed, they are enumerated
together in Article 25 of the Universal Declaration on Human Rights—his section
addresses aspects of both rights: the right to water (Section 1), the rights to food
and to land (Section 2), the right to housing (Section 3), and the right to health
(Section 4).
1. The Right to Water
3.89 The CESCR has stated that the “human right to water”, which derives from
both Articles 11(1) and 12(1) of the ICESCR, “entitles everyone to sufficient, safe,
acceptable, physically accessible and affordable water for personal and domestic
uses”.887 “Water and water facilities and services have to be accessible to everyone
without discrimination, within the jurisdiction of the State party”.888 This includes
886 See Human Rights Council, Report of the independent international factfinding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), paras. 59-61; UNGA, Report of the
Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 69.
887 CESCR, General Comment No. 15, UN Doc. E/C.12/2002/11 (20 Jan. 2003), para. 2.
888 Ibid., para. 12(c) (emphasis original).
219
“ensuring sustainable access to water resources for agriculture …”.889 Israel’s
obligation to respect this right also requires it to “refrain from interfering directly
or indirectly with the enjoyment of the right to water” by, inter alia, “refraining
from engaging in any practice or activity that denies or limits equal access to
adequate water … and limiting access to, or destroying, water services and
infrastructure as a punitive measure, for example, during armed conflicts in
violation of international humanitarian law”.890
3.90 As explained in paragraphs 2.99 and 2.126-2.129, in Gaza, Israel has
attacked water installations and otherwise taken measures that impede the
delivery of clean water to households. In so doing, it directly interferes with the
enjoyment of the right to water and limits access to water infrastructure, and
therefore violates the right.
3.91 In the West Bank, Israel’s measures contributing to water insecurity in
Palestinian communities, while prioritizing delivering water to Jewish Israeli
settlements (described in paragraphs 2.48 and 2.223), are discriminatory measures
concerning access to water resources and therefore violate the right to water.
3.92 Israel’s restrictions on Palestinians’ access to water have been the subject
of concluding observations by various human rights treaty bodies:
• In 2019, the CESCR expressed concern about “restrictions imposed on
the access of Palestinians to … water sources” in the Gaza Strip.891 It
was further troubled by “the impact of [Israel’s] occupation and
settlement policy and of its destruction of Palestinian water
infrastructure on Palestinians in the Occupied Palestinian Territory in
889 Ibid., para. 7.
890 Ibid., para. 21.
891 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 44.
220
accessing water, which results in them living far below the extreme
water scarcity level, which in turn engenders serious health
consequences”.892
• In 2022, the CERD Committee stated it was “appalled at the hermetic
character of the separation of [the Jewish and Palestinian populations in
the OPT], who live on the same territory but do not enjoy … equal
access to … water resources”.893 In that regard, the committee
expressed particular concern about “continuing restrictions on access of
Palestinians in the [OPT] … to … adequate water supply”.894
3.93 Similar concerns have been voiced by the UN Secretary-General, UN
HCHR, mandate holders, and commission of inquiry.895
2. The Rights to Food and to Land
3.94 The right to food is expressly established by Article 11(1) of the ICESCR.
To comply with its core obligations regarding the right to food, Israel must “ensure
the satisfaction of, at the very least, the minimum essential level required to be free
892 Ibid., para. 46.
893 2020 CERD Concluding Observations, para. 22.
894 Ibid., para. 42.
895 See, e.g., UNGA, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept.
2022), para. 69 (“Israeli policies … such as those on the expropriation of natural resources and on
building restrictions, have directly affected the economic, social and cultural rights of Palestinians,
including their right[] to … water”); Human Rights Council, Report of the UN High Commissioner
for Human Rights on Allocation of water resources in the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/48/43 (15 Oct. 2021), para. 42 (“The destruction of water
facilities [by Israel] may violate obligations of the occupying Power to … ensure the right to water
under international human rights law”.); Human Rights Council, Report of the UN High
Commissioner for Human Rights on Ensuring accountability and justice for all violations of
international law in the Occupied Palestinian Territory, including East Jerusalem: comprehensive
review on the status of recommendations addressed to all parties since 2009, UN Doc.
A/HRC/35/19 (12 June 2017), para. 44 (“[Israel’s blockade in the Gaza Strip] violates a broad
spectrum of human rights, including access … to water”.).
221
from hunger”896 and may not “discriminat[e] in access to food”.897 Measures that
amount to “the denial of access to food to particular individuals or groups” and “the
prevention of access to humanitarian food aid in internal conflicts or other
emergency situations” constitute violations of Israel’s obligations to respect and
ensure the right to food.898
3.95 The right to land is, according to the CESCR, “crucial to guarantee the
enjoyment of the right to adequate food, as land is used in rural areas for the
purpose of food production”.899 Israel must ensure “the right to have access to,
sustainably use and manage land to achieve an adequate standard of living”.900
Israel’s obligation to respect the right to land also “means not doing any of the
following: (a) interfering with land users’ legitimate tenure rights, in particular by
evicting occupants from land on which they depend for their livelihoods; (b)
evicting by force and demolishing property as punitive measures; [and] (c)
committing any discriminatory acts in the process of land registration and land
administration”.901
3.96 By causing a situation of food insecurity in Gaza and destroying food
production facilities there, as described in paragraphs 2.88, 2.101, 2.103 and
2.126, Israel violates the right to food. In this regard, in 2019, the CESCR expressed
concern that “half the population of Gaza lives in poverty and that about two-thirds
of households in Gaza have been suffering from food insecurity, which is largely
896 CESCR, General Comment No. 12, UN Doc. E/C.12/1999/5 (12 May 1999), para. 17.
897 Ibid., para. 18.
898 Ibid., para. 19.
899 CESCR, General Comment No. 26, UN Doc. E/C.12/GC/26 (24 Jan. 2023), para. 6. See also
ibid., para. 18 (“For peasants, access to land and other productive resources is so important for the
realization of most rights under the Covenant that it implies for them a right to land.”).
900 Ibid., para. 18.
901 Ibid., para. 22.
222
attributable to [Israel’s] closure policy”.902 According to the CESCR, this policy
impacts “the enjoyment of Covenant rights by people living [in Gaza], including
the right[] to … food”.903
3.97 Israel’s restrictions on access to Palestinians’ farmland and grazing
land in the West Bank and the so-called “buffer zone” in Gaza (described in
paragraphs 2.72-2.74 and 2.100-2.101, respectively) violate Palestinians’ right to
food and the right to land by impeding their ability to maintain an agricultural
livelihood. For the same reason, the limitations on access to the fishing waters of
Gaza (described in paragraphs 2.100-2.101) violate the right to food of Palestinian
subsistence fishermen. Israel’s impeding of humanitarian deliveries to Gaza
(described in paragraphs 2.94 and 2.131) also violates Palestinians’ right to food.
3.98 Israel’s measures that unjustifiably impede Palestinians from using or
accessing their land in the West Bank also violate the right to land. This includes:
• Israel’s land confiscations and evictions in the West Bank (described
in paragraphs 2.13 and 2.60-2.62);
• Barriers Israel has erected to Palestinians’ ability to secure land
tenure (described in paragraph 2.50);
• Israel’s zoning and building permitting policies in the West Bank
(described in paragraphs 2.51-2.59);
• Israel’s restrictions on access to grazing and farmland in the West
Bank (described in paragraphs 2.70-2.74); and
902 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 44.
903 Ibid., para. 10.
223
• Israel’s tolerance for the establishment of illegal “outpost”
settlements on Palestinian-owned land (described in paragraphs 2.17-
2.18).
3.99 Israel’s violation of Palestinians’ right to land was noted with deep concern
by various human rights treaty bodies, including:
• In 2019, the CESCR stated it was concerned about “restrictions
imposed on the access of Palestinians to their agricultural land”.904
• In 2022, the HRC noted with deep concern that “the continued
construction of the wall in the West Bank … significantly restricts
Palestinians’ enjoyment and exercise of rights and freedoms, including
freedom of movement and access to land, especially agricultural land,
property and natural resources”.905
3.100 The OHCHR, mandate holders and commission of inquiry have also
expressed concern about the impact of Israel’s policies and practices on
Palestinians’ right to food and land.906
904 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 44.
905 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 14.
906 See, e.g., UNGA, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept.
2022), para. 69 (“Israeli policies … such as those on the expropriation of natural resources and on
building restrictions, have directly affected the economic, social and cultural rights of Palestinians,
including their rights to housing, an adequate standard of living, food, water and sanitation, health
care and education”.); Human Rights Council, Report of the Independent International Commission
of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc.
A/HRC/50/21 (9 May 2022), para. 51 (“[The Commission of Inquiry] recognizes the concern raised
by human rights mechanisms about the patterns of violation of the right to land and housing in the
West Bank, including systemic violations resulting from discriminatory planning and zoning laws
and policies, confiscation of land and natural resources, systemic demolition of homes, forced
eviction, and expansion of settlements coupled with restriction of movement.”).
224
3. The Right to Housing
3.101 The right under Article 11 of the ICESCR to an adequate standard of living
includes a right to housing, which the CESCR has concluded “should be seen as
the right to live somewhere in security, peace and dignity”.907 This right is
complemented by the right recognized in Article 17 of the ICCPR, which provides
that “[n]o one shall be subjected to arbitrary or unlawful interference with his …
home”.
3.102 The CESCR explains that “forced eviction[s] are prima facie incompatible
with the requirements of the [ICESCR] and can only be justified in the most
exceptional circumstances”.908 A forced eviction is “the permanent or temporary
removal against their will of individuals, families and/or communities from the
homes and/or land which they occupy, without the provision of, and access to,
appropriate forms of legal or other protection”.909 The CESCR explained that, to
respect the right to housing, “[states] must refrain from forced evictions and ensure
that the law is enforced against its agents or third parties who carry out forced
evictions”, which is reinforced by Article 17(1) of the ICCPR.910 Notably,
“[f]orced eviction and house demolition as a punitive measure are also inconsistent
with the norms of the [ICCPR]”.911 Article 5(e)(iii) of the CERD requires Israel to
guarantee this right without distinction as to ethnic origin.
3.103 Israel’s policies constricting new construction by Palestinians,
demolitions of Palestinians’ homes in the West Bank, and forced evictions
907 CESCR, General Comment No. 4, UN Doc. E/1992/23 (13 Dec. 1991), para. 7.
908 Ibid., para. 18.
909 CESCR, General Comment No. 7 (16 May 1997), para. 3.
910 Ibid., para. 8.
911 Ibid., para. 12.
225
therefrom (described in paragraphs 2.51-2.54, 2.55-2.59, and 2.60-2.62,
respectively) violate Palestinians’ right to housing. They amount to arbitrary and
discriminatory interferences with Palestinians’ homes. Israel’s attacks on
Palestinians’ homes in Gaza (described in paragraph 2.113 and 2.120) also violate
the right to housing. Because these measures do not similarly apply to Jewish
Israelis, they also violate the CERD.
3.104 Israel’s violation of Palestinians’ right to housing has been the subject of
the concluding observations of several human rights treaty bodies, including:
• In 2020, the CERD Committee stated it was particularly concerned
about “[Israel’s] continued demolitions of buildings and structures …,
and as a consequence, further displacement of Palestinians [in the
OPT]”.912 It thus recommended that Israel “review planning laws and
policies in the West Bank, including Jerusalem” to ensure “the rights to
property, access to land, housing and natural resources of
Palestinian[s]”.913
• In 2022, the HRC expressed concern about Israel’s “intensified practice
of the demolition of Palestinian houses and other infrastructure … in
the West Bank … amid the COVID-19 pandemic, and the forced
evictions and forcible transfer of those whose homes are destroyed”.914
In this regard, the HRC noted, with regret, that Israel has
“systematically” deprived Palestinians of “their land and housing rights
for decades”.915
912 2020 CERD Concluding Observations, para. 42(a).
913 Ibid., para. 43(a).
914 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 42.
915 Ibid., para. 42.
226
3.105 Similarly, the UN Secretary-General, OHCHR, mandate holders and
commissions of inquiry have expressed concern over Israel’s violation of the right
to housing of Palestinians.916
4. The Right to Health
3.106 According to the CESCR, the right to health enshrined by Article 12(1) of
the ICESCR includes access to “[h]ealth facilities, goods and services … without
discrimination”.917 Article 5(e)(iv) of the CERD underscores that this right must
be guaranteed without distinction as to ethnic origin. Article 24 of the CRC
underscores that children have the right “to the enjoyment of the highest attainable
standard of health”.
3.107 Israel must respect the right to health by, inter alia, “refraining from
denying or limiting equal access for all persons … [to] health services”.918 Denying
916 See, e.g., UNGA, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the Occupied Syrian Golan, UN Doc. A/77/493 (3 Oct. 2022) (Dossier No. 72),
para. 21 (“[Israel’s] demolitions and forced evictions intensify the environment coercing people to
leave their homes, raise the risk of forcible transfer and violate a range of human rights, including
the right to adequate housing.”); HRC, Report of the Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc.
A/HRC/50/21 (9 May 2022), para 51 (“[The Commission of Inquiry] recognizes the concern raised
by human rights mechanisms about the patterns of violation of the right to land and housing in the
West Bank, including systemic violations resulting from discriminatory planning and zoning laws
and policies, confiscation of land and natural resources, systemic demolition of homes, forced
eviction, and expansion of settlements coupled with restriction of movement.”); UNGA, Report of
the Independent International Commission of Inquiry on the Occupied Palestinian Territory,
including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 69 (“Israel’s policies …
such as those on the expropriation of natural resources and on building restrictions, have directly
affected the economic, social and cultural rights of Palestinians, including their right[] to housing”);
Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and in the occupied Syrian Golan, UN Doc. A/HRC/43/67 (30 Jan. 2020), para. 44
(“Demolitions conducted in the context of the discriminatory planning system are unlawful and
amount to forced evictions. They may also result in violations of the rights to an adequate standard
of living, to adequate housing, and to education.”).
917 CESCR, General Comment No. 14, UN Doc. E/C.12/2000/4 (11 Aug. 2000), para. 12(b).
918 Ibid., para. 34.
227
Palestinians “access to health facilities, goods and services … as a result of de jure
or de facto discrimination” amounts to a violation of that obligation.919
3.108 The former Special Rapporteur on the right to health, Paul Hunt, explains
that “the highest attainable standard of health is an inclusive right extending not
only to timely and appropriate medical care but also to the underlying determinants
of health, such as access to safe water and adequate sanitation, an adequate supply
of safe food, [and] nutrition and housing”, among others.920 In particular, “[s]afe
water and adequate sanitation are two integral and closely related underlying
determinants which are essential for the realization of the right to the highest
attainable standard of health”.921 Accordingly, Israel must “do all it can to ensure
safe water and adequate sanitation is available to everyone in its jurisdiction”.922 It
may not “arbitrarily interfer[e] with a person’s access to water and sanitation”.923
3.109 In addition, and in keeping with the inclusive nature of the right to health,
it implies a right to be free from violence, including systemic violence. As the
Special Rapporteur on the right to health, Tlaleng Mofokeng, explains, systemic
violence “is a major obstacle in the realization” of the right to health.924 Because
the “obligation to respect requires that States refrain from directly or indirectly
919 Ibid., para. 50.
920 UNGA, Report of Special Rapporteur P. Hunt on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, UN Doc. A/62/214 (8 Aug. 2007), para.
47.
921 Ibid., para. 50.
922 Ibid., para. 73.
923 Ibid., para. 82.
924 Human Rights Council, Report of Special Rapporteur T. Mofokeng on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health, UN Doc.
A/HRC/50/28 (14 Apr. 2022), para. 11.
228
interfering with the right to health”,925 any acts of Israel that perpetuate systemic
violence constitute violations of its obligation to respect the right to health.
3.110 Israel’s systemic practices of violence and coercion in law enforcement
activities in the West Bank (including East Jerusalem) (described in paragraphs
2.139-2.178), the pattern of military attacks on Gaza (described in paragraphs
2.108-2.129), and Israel’s violent enforcement of its blockade of Gaza (described
in paragraphs 2.130-2.136), violate the right to health because they subject
Palestinians to systemic violence, which causes severe impact on mental health,
especially that of children.926
3.111 Israel’s blockade of, and attacks on infrastructure in, Gaza (described
in paragraphs 2.86-2.106 and 2.124-2.129) violate the right to health of Palestinians
who live there. It does so by, inter alia, the functioning of health, water and
sanitation infrastructure; preventing the import of medical equipment; and taking
measures that cause food insecurity. Most strikingly, Israel violates the right to
health by instituting travel restrictions on patients in Gaza, preventing them from
timely accessing medical care available elsewhere.927 In 2019, the CESCR
expressed particular concern about the right to health of Palestinians in Gaza. It
noted “the very limited availability of health-care services and the deteriorating
quality of such services in the Gaza Strip due to restrictions on dual-use items,
925 Ibid., para. 18.
926 See, e.g., “In Gaza, lingering trauma is worsening a mental health crisis,” Médecins sans
frontières, (30 June 2021), available at https://tinyurl.com/3fv8uryr. See also UNRWA,
Department of Health, Annual Report 2022 (23 May 2023), available at
https://tinyurl.com/ycksnvn3, p. 31; Save the Children, Trapped: The Impact of 15 Years of
Blockade on the Mental Health of Gaza’s Children
(2022), available at https://tinyurl.com/4ufnxeb7, pp. 5, 24; World Bank Group, International
Security and Development Center, Zentrum Überleben & Palestinian Central Bureau of Statistics,
Mental Health in the West Bank and Gaza (22 Nov. 2022), available at
https://tinyurl.com/mtmdnxu5.
927 See supra para. CHAPTER 1.I. A.1(a)i.2.106.
229
including essential medical equipment and supplies, and the escalation of
hostilities, which have forced residents to seek medical treatment in the West Bank
or in Israel”.928 Furthermore, it stated it was “concerned about the lengthy and
complicated exit-permit system, which has impeded the ability of residents of the
Gaza Strip to access medically recommended treatment that is not available in Gaza
in the West Bank, including East Jerusalem, in Israel and abroad”.929
3.112 Similarly, Israel’s restrictions on Palestinians’ freedom to travel within
the West Bank (including East Jerusalem), as described in paragraphs 2.69-2.85,
also violate the right to health because they unreasonably impede the ability of
Palestinians in the West Bank (including East Jerusalem) to access medical
services; women and especially pregnant women are particularly affected, as
described in paragraphs 2.80-2.81.930 Also in the West Bank, measures
contributing to water insecurity in Palestinian communities, described in
paragraphs 2.123, 2.167, and 2.248-2.251, in Palestinian communities violate the
right to health.
3.113 Because Jewish Israelis do not face the same restrictions and impediments,
these restrictions and measures constitute the denial of access to health services in
a non-discriminatory manner, violating the right to health under both the ICESCR
and Article 5(e)(iv) of the CERD. In this regard, in 2020, the CERD Committee
stated it was “concerned … about the disproportionately poor health status of the
928 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 58.
929 Ibid.
930 See CEDAW Committee, Concluding observations on the sixth periodic report of Israel, UN
Doc. CEDAW/C/ISR/CO/6 (17 Nov. 2017), para. 46(b) (CEDAW committee noting concern that
“[o]wing to restrictions on freedom of movement at checkpoints, Palestinian women and girls in
the Occupied Palestinian Territory experience hardships in reaching health-care facilities such as
hospitals and clinics and emergency care and specialized treatment”.).
230
Palestinian … populations, including shorter life expectancy and higher rates of
infant mortality compared with those of the Jewish population”.931
3.114 The UN Secretary-General, OHCHR, mandate holders and commission of
inquiry have also expressed concern about the impact of Israel’s policies and
practices on Palestinians’ right to health.932
J. ISRAEL VIOLATES THE RIGHT TO WORK
3.115 The obligation to respect the right to work means that states must refrain
“from denying or limiting equal access to decent work for all persons”;933 the
931 2020 CERD Concluding Observations, para. 38(c).
932 See, e.g., Human Rights Council, Human rights situation in the Occupied Palestinian Territory,
including East Jerusalem, and the obligation to ensure accountability and justice, UN Doc.
A/HRC/52/75 (13 Feb. 2023), para. 13 (“The land, sea and air blockade and the closure of Gaza,
which constitute collective punishment, entered its sixteenth year, with extremely detrimental
impacts on freedom of movement, and the enjoyment of economic, social and cultural rights, such
as the rights to an adequate standard of living, health, education, work and family life. One
significant consequence of the blockade is severe restrictions on access to specialized medical care
not available in Gaza. Affected patients require an Israeli exit permit to receive critical and
sometimes life-saving care. Such permits are often delayed or denied.”); UNGA, Israeli Practices
Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory,
including East Jerusalem, UN Doc. A/74/468 (2 Oct.2019) (Dossier No. 860), para. 27, (“The right
to health, including access to life-saving treatment, was particularly affected by restrictions on the
movement of patients, health professionals and goods.”); UNGA, Report of the Independent
International Commission of Inquiry on the Occupied Palestinian Territory, including Jerusalem,
and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 69 (“Israeli policies … such as those on the
expropriation of natural resources and on building restrictions, have directly affected the economic,
social and cultural rights of Palestinians, including their rights to housing, an adequate standard of
living, food, water and sanitation, health care and education.”); UNGA, Report of Special
Rapporteur S. M. Lynk on the situation of human rights in the Palestinian territories occupied since
1967, UN Doc. A/75/532 (22 Oct. 2020), para. 9 (“[F]acts on the ground demonstrate that Israel,
the occupying Power, through the imposition of existing measures, has significantly reduced
Palestinians’ access to health care and to humanitarian assistance”.); ibid., para. 23 (“Palestinian
children’s access to health care continues to be severely affected. The intricate system of movement
restrictions in the case of the West Bank, including East Jerusalem, and the 14-year blockade of
Gaza by Israel have resulted in serious challenges in access to health-care facilities and specialized
medical treatment for children. In Gaza, children continue to face denial of or delay in access to
health-care facilities or specialized treatment outside of the Strip.”).
933 CESCR, General Comment No. 18, UN Doc. E/C.12/GC/18 (24 Nov. 2005), para. 23.
231
CESCR has found that “discrimination in access to the labour market” is a violation
thereof.934 As a core obligation under the ICESR, Israel must also “ensure the right
of access to employment”.935 Article 5(e)(i) of the CERD requires Israel to
guarantee this right without distinction as to ethnic origin.
3.116 Israel’s restrictions on the freedom of movement within the OPT violate
this right because, as explained in paragraphs 2.74 and 2.80, they unreasonably
impede Palestinians’ ability to access their places of work. Jewish Israelis are not
similarly affected and the discriminatory nature of the restrictions amount to a
violation of Article 5(e)(i) of the CERD.
3.117 In its concluding observations in 2019, the CESCR noted with deep concern
that Israel’s “closure policy and the related permit regime regarding the Gaza Strip
and the occupation and settlement policy in the West Bank, including East
Jerusalem” had a “severe impact” on Palestinians’ ability to enjoy the right to
work.936 The UN Secretary-General and other mandate holders have reached the
same conclusion.937
934 Ibid., para. 33.
935 Ibid., para. 31(a).
936 CESCR, Concluding observations on the fourth periodic report of Israel, UN Doc.
E/C.12/ISR/CO/4 (12 Nov. 2019), para. 10.
937 See, e.g., Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of
human rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug.
2022), para. 50(b) (“[Palestinians’] right to work is impeded by a smothered economy, travel
restrictions and the fragmentation of their territory.”); UNGA, Israeli practices affecting the human
rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem,
UN Doc. A/76/333 (20 Sept. 2021) (Dossier No. 862), para. 43 (“[Israel’s] restrictions [on the
freedom of movement across the Occupied Palestinian Territories] continued to disrupt the daily
life of Palestinians, profoundly affecting other rights, including the rights to work, to an adequate
standard of living, to education and to health.”).
232
K. ISRAEL VIOLATES THE RIGHTS TO EQUALITY BEFORE THE LAW
AND TO A FAIR TRIAL
3.118 Article 14(1) of the ICCPR establishes that “[a]ll persons shall be equal
before the courts and tribunals”. In criminal and civil judicial proceedings,
“everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law”. The HRC has explained that this article
“prohibits any distinctions regarding access to courts and tribunals that are not
based on law and cannot be justified on objective and reasonable grounds”.938
Articles 2(a) and 5(a) of the CERD prohibit distinctions based on ethnic origin in
the enjoyment of this right.
3.119 The very existence of a dual legal system in the West Bank violates these
principles because it treats Palestinians and Jewish Israelis differently. There can
be no justification for maintaining a system which, as the UN Independent
International Commission of Inquiry on the Occupied Palestinian Territory,
including Jerusalem, and Israel has described it, “provides greater enjoyment of
human rights for Israelis than for Palestinians and is therefore discriminatory”.939
Indeed, in 2020, the CERD Committee expressed concern “at the maintenance of
several laws that discriminate against … Palestinians in the Occupied Palestinian
Territory, and that create differences among them, as regards their civil status, legal
protection, access to social and economic benefits, or right to land and property”.940
938 HRC, General Comment No. 32, UN Doc. CCPR/C/GC/32 (23 Aug. 2007), para. 9.
939 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
47. See also Human Rights Council, Report of the United Nations Fact Finding Mission on the
Gaza Conflict, UN Doc. A/HRC/12/48 (25 Sept. 2009), para. 206 (finding that the system has
resulted in the “institutionalized discrimination against Palestinians in the Occupied Palestinian
Territory to the benefit of Jewish settlers”).
940 2020 CERD Concluding Observations, para. 15.
233
3.120 Article 14(3) of the ICCPR provides a host of “minimum guarantees” to
which everyone is entitled “[i]n the determination of any criminal charge”. Those
rights are complemented by other procedural safeguards established under Articles
9(2)-(4) of the ICCPR. The procedural safeguards afforded Palestinian
defendants (described in paragraphs 2.191-2.195) in the military criminal justice
system fall short of many of these guarantees, including the rights “[t]o be tried
without undue delay” and “[t]o have the free assistance of an interpreter if [one]
cannot understand or speak the language used in court”.941
3.121 The UN Secretary-General, OHCHR, mandate holders and commission of
inquiry have expressed concerns regarding the lack of due process guarantees for
Palestinians in the Israeli justice system.942
941 ICCPR, arts. 14(3)(c) and (f).
942 See, e.g, Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of
human rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug.
2022), para. 41 (“The military legal system is presided over by Israeli military judges and trials are
conducted in Hebrew (which many Palestinian detainees do not speak). The system offers few of
the procedural and substantive protections of a purposive criminal legal system, while the prisoners’
lawyers are significantly restricted in their access to evidence and the conviction rate is over 99 per
cent. Even more draconian, there are at any one time hundreds of Palestinians imprisoned
indefinitely through administrative detention, where they are incarcerated without the façade of a
formal proceeding, that is, without charges, evidence, a trial or a conviction, and whose detention
can be extended indefinitely.”) and para. 50(a) (“[T]he military courts incarcerate thousands of
Palestinians on security charges through a judicial system that offers few of the international
protections regarding due process or the prevention of arbitrary arrest and detention.”); Human
Rights Council, Human rights situation in the Occupied Palestinian Territory, including East
Jerusalem, UN Doc. A/HRC/37/42 (21 Feb. 2018), para. 27 (“Through trial monitoring, OHCHR
has identified several concerns about violations of fair trial rights in the Israeli justice system
concerning Palestinians”.); UNGA, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the Occupied Syrian Golan, UN Doc. A/77/493 (3 Oct. 2022)
(Dossier No. 72), para. 42 (“90 per cent of investigations of Palestinians (between 2014 and 2018)
led to indictments in military courts, with 96 per cent of the cases prosecuted resulting in conviction,
most of which were based on plea deals (99.6 per cent from 2018 to April 2021)”).
234
L. ISRAEL VIOLATES ITS OBLIGATION TO ENSURE EFFECTIVE REMEDIES
3.122 Article 3(a) of the ICCPR requires Israel to ensure that victims of human
rights violations “have an effective remedy” and that each individual “have his
right thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal system
of the State”. Article 6 of the CERD likewise establishes the right to an effective
remedy;943 the right is implicit in the ICESCR.944 The HRC has underscored that,
to comply with its obligations in this regard, a state must “establish[] appropriate
judicial and administrative mechanisms for addressing claims of rights violations
under domestic law”. 945 It is obliged to “make reparation to individuals whose …
rights have been violated”.946 This “can involve restitution, rehabilitation and
measures of satisfaction, such as public apologies, public memorials, guarantees of
non-repetition and changes in relevant laws and practices, as well as bringing to
justice the perpetrators of human rights violations”.947
943 International Convention on the Elimination of All Forms of Racial Discrimination (21 Dec.
1965), 660 U.N.T.S. 195 (hereinafter, “CERD”), art. 6 (“States Parties shall assure to everyone
within their jurisdiction effective protection and remedies, through the competent national tribunals
and other State institutions, against any acts of racial discrimination which violate his human rights
and fundamental freedoms …”).
944 CESCR, General Comment No. 9, UN Doc. E/C.12/1998/24 (3 Dec. 1998), para. 3 (“The
Covenant contains no direct counterpart to article 2.3 (b) of the International Covenant on Civil and
Political Rights which obligates States parties to, inter alia, ‘develop the possibilities of judicial
remedy’. Nevertheless, a State party seeking to justify its failure to provide any domestic legal
remedies for violations of economic, social and cultural rights would need to show either that such
remedies are not ‘appropriate means’ within the terms of article 2.1 of the Covenant or that, in view
of the other means used, they are unnecessary. It will be difficult to show this and the Committee
considers that, in many cases, the other ‘means’ used could be rendered ineffective if they are not
reinforced or complemented by judicial remedies.”)
945 HRC, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add. 13 (29 Mar. 2004), para. 15.
946 Ibid., para. 16.
947 Ibid.
235
3.123 Israel’s policies impeding the ability of Palestinians to effectively redress
human rights violations they suffer, described in paragraphs 2.137-2.138, and
2.178, and its failure to hold accountable the perpetrators of those violations,
described in paragraphs 2.148-2.153, 2.177, 2.205 and 2.226, amount to violations
of its obligations to provide effective remedies.
3.124 Israel’s violation of the Palestinians’ right to effective remedies was the
subject of the HRC’s 2022 concluding observations. The committee noted with
deep concern “the lack of accountability” for “the excessive use of lethal force by
the Israeli security forces against Palestinian civilians”, “resulting in a general
climate of impunity”;948 “a very low rate of indictments and convictions of
perpetrators [of settler violence against Palestinians]”;949 “the lack of updated
information on investigation into human rights violations in the Gaza Strip”;950 and
“a very low rate of criminal investigations, prosecutions and convictions
concerning allegations of torture and ill-treatment” by Israel against Palestinians in
detention.951 The HRC thus recommended that Israel provide all Palestinian
victims with effective remedies.
3.125 The UN Secretary-General, OHCHR, mandate holders and commission of
inquiry have come to the same conclusion.952
948 HRC, Concluding observations on the fifth periodic report of Israel, UN Doc.
CCPR/C/ISR/CO/5 (5 May 2022), para. 26.
949 Ibid., para. 24.
950 Ibid., para. 22.
951 Ibid., para. 30.
952 See, e.g., Human Rights Council, Human rights situation in the Occupied Palestinian Territory,
including East Jerusalem, and the obligation to ensure accountability and justice, UN Doc.
A/HRC/52/75 (13 Feb. 2023), para. 59 (“The duty of the State to investigate potential unlawful
deaths is an important element of the protection afforded to the right to life … The systematic Israeli
failure to investigate such incidents furthers impunity, leading invariably to increased Palestinian
casualties.”) and para. 64 (“Concerns persisted regarding lack of accountability by relevant Israeli
236
III. The Conduct of the Occupation Violates
International Humanitarian Law
3.126 As the occupying power in the OPT, Israel must abide by IHL. The Court
held in the Wall Advisory Opinion that “the Fourth Geneva Convention … is
applicable in the [occupied] Palestinian territories”.953 The Court also determined
that the provisions of the Regulations Respecting the Laws and Customs of War on
Land (“Hague Regulations”) reflect customary international law954 and apply to
the conduct of Israel’s occupation of the Palestinian territory.955
3.127 Israel’s conduct in the OPT is also governed by relevant norms of
customary international law. This includes the peremptory prohibitions of crimes
against humanity and war crimes.956 Moreover, by virtue of the State of Palestine’s
authorities in investigating allegations of torture or ill-treatment of Palestinians, including sexual
violence, in Israeli detention facilities.”); Human Rights Council, Report of the Independent
International Commission of Inquiry on the Occupied Palestinian Territory, including East
Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9 May 2022), para. 64 (“[The High Commissioner
for Human Rights] found a lack of accountability by Israel for violations in the Occupied Palestinian
Territory on account of two sets of shortcomings: physical, financial, legal and procedural barriers
that restricted the ability of Palestinians, particularly those living in Gaza, to gain access to justice,
and the failure to investigate all allegations.”); UNGA, Israeli practices affecting the human rights
of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/76/333 (20 Sept. 2021) (Dossier No. 862), para. 5 (“Lack of accountability for international
human rights and international humanitarian law violations remained pervasive.”); UNGA, Report
of the Independent International Commission of Inquiry on the Occupied Palestinian Territory,
including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 66 (“Israeli courts have
charged few persons suspected of committing violent acts against Palestinians, which contributes
to a prevailing climate of impunity.”).
953 Wall Advisory Opinion, para. 101.
954 Ibid., para. 89.
955 See, e.g., ibid., para. 135.
956 ILC, Peremptory norms of general international law (jus cogens): Texts of the draft conclusions
and Annex adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.967 (11 May
2022), Conclusion 23 (Annexes (c)-(e)). See also ILC, Fourth report on peremptory norms of
general international law (jus cogens) by Special Rapporteur D. Tladi, UN Doc. A/CN.4/727 (31
Jan. 2019), paras. 84-101, 116-121; ILC, Draft Articles on Prevention and Punishment of Crimes
against Humanity, with commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION
237
accession to the Rome Statute, any individual, regardless of nationality or official
capacity, will incur individual criminal responsibility for the commission of crimes
against humanity and war crimes in the OPT.957 As the International Criminal
Court’s Pre-Trial Chamber ruled, “the Court’s territorial jurisdiction in the
Situation in Palestine extends to the territories occupied by Israel since 1967,
namely Gaza and the West Bank, including East Jerusalem”.958
3.128 Israel’s core obligation as occupying power is to ensure public order and
civil life in the OPT.959 Yet far from maintaining public order and civil life in the
2019 (Vol. II, Pt. 2), Preamble (“Recalling also that the prohibition of crimes against humanity is a
peremptory norm of general international law (jus cogens)”); ibid., pp. 24-25.
957 The scope of individual criminal responsibility under the Rome Statute is coextensive with the
jurisdiction of the ICC. See Rome Statute of the International Criminal Court (17 July 1998), 2187
U.N.T.S. 90 (hereinafter, “Rome Statute”), art. 25(2) (“A person who commits a crime within the
jurisdiction of the Court shall be individually responsible and liable for punishment in accordance
with this Statute.”). The ICC’s personal jurisdiction extends to the author of a crime, regardless of
nationality, when the conduct in question occurred within the territory of a State Party to the Rome
Statute. See ibid., art. 12(2)(a). The State of Palestine is a party to the Rome Statute. International
Criminal Court, “State of Palestine: Situation in the State of Palestine” (last accessed: 11 July 2023),
available at https://tinyurl.com/2nrvvfxe. Official capacity does not preclude international criminal
responsibility under the Rome statute. See Rome Statute, art. 27 (“This Statute shall apply equally
to all persons without any distinction based on official capacity. In particular, official capacity as a
Head of State or Government, a member of a Government or parliament, an elected representative
or a government official shall in no case exempt a person from criminal responsibility under this
Statute”).
958 See International Criminal Court, Pre-Trial Chamber I, Decision on the Prosecution request
pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (5 Feb.
2021), ICC-01/18, para. 118.
959 See International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and
Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on
Land (18 Oct. 1907) (hereinafter, “Hague Regulations”), art. 43. The authentic French text of the
Hague Regulations provides that Israel must “prendr[e] toutes les mesures qui dépendent de lui en
vue de rétablir et d’assurer, autant qu’il est possible, l’ordre et la vie publics”. Ibid. The French
original term “l’ordre et la vie publics” is translated in the commonly-accepted English version as
“public order and safety”. However, it is widely accepted that a “more comprehensive phrase”,
“namely ‘public order and civil life’”, is more faithful to the authentic French text. See E. Benvenisti,
THE INTERNATIONAL LAW OF OCCUPATION (2nd Ed., OUP, 2012), p. 68 (note 1) (emphasis original).
Indeed, this view has been accepted by the Supreme Court of Israel, which held in 1988 that in the
OPT, Israel is obliged to maintain “public life and order in a modern and civilized State at the end
of the twentieth century”. UNCTAD, The Economic Costs of the Israeli Occupation for the
Palestinian People and their Human Right to Development: Legal Dimensions (2018), available at
238
OPT, Israel’s measures there amount to violations of various specific norms of
IHL. In the West Bank, the most egregious violations are the establishment of
settlements in the OPT (Section A(1)), measures affecting Palestinian public and
private property (Section A(2)), Israel’s failure to protect Palestinians from
violence inflicted by State actors and private parties (Section A(3)), the forcible
transfer of the Palestinian population (Section A(4)), and the application of Israeli
domestic law in the West Bank (including East Jerusalem) (Section A(5)). In Gaza,
Israel violates the basic norms governing the use of force in armed conflict (Section
B(1)), does not comply with its obligations concerning the essential needs of the
population (Section B(2)), and inflicts prohibited collective punishment on that
population (Section B(3)). And in all of the OPT, Israel treats the natural resources
as its own, violating the rules governing an occupying power’s utilization of the
occupied territory’s natural resources (Section C).
A. THE CONDUCT OF THE OCCUPATION IN THE WEST BANK (INCLUDING EAST
JERUSALEM) VIOLATES INTERNATIONAL HUMANITARIAN LAW
1. The Establishment of Israeli Settlements in the West Bank (Including East
Jerusalem) Violates Article 49(6) of the Fourth Geneva Convention
3.129 Article 49(6) of the GC IV provides that “[t]he Occupying Power shall not
deport or transfer parts of its own civilian population into the territory it
occupies”.960 The Court explained in the Wall Advisory Opinion that this provision
“prohibits not only deportations or forced transfers of population such as those
carried out during the Second World War, but also any measures taken by an
https://tinyurl.com/3ecmx3c5, p. 10. See also M. Sassòli, “Article 43 of The Hague Regulations and
Peace Operations in the Twenty-First Century,” HPCR (June 2004), available at
https://tinyurl.com/2p8b467s, pp. 3-4.
960 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (12 Aug.
1949), 75 U.N.T.S. 287 (hereinafter, “Fourth Geneva Convention”), art. 49.
239
occupying Power in order to organize or encourage transfers of parts of its own
population into the occupied territory”.961
3.130 A violation of this rule constitutes a grave breach of the GC IV,962 that is,
an act for which the parties thereto have “undertake[n] to enact any legislation
necessary to provide effective penal sanctions for persons committing, or ordering
to be committed”.963 Article 8(2)(b)(viii) of the Rome Statute recognizes it as a war
crime giving rise to individual criminal responsibility.964
3.131 As explained in Chapter 2, Section I, shortly after the 1967 war, Israel
began to authorize and encourage the establishment of settlements of Jewish Israeli
nationals in the West Bank (including East Jerusalem). The practice continues to
this day. Israel’s settlement of this territory plainly violates IHL. Indeed, the Court
previously determined then that “the Israeli settlements in the Occupied Palestinian
961 Wall Advisory Opinion, para. 120 (emphasis added).
962 Fourth Geneva Convention, art. 147.
963 Ibid., art. 146(1).
964 The terms “prohibition of grave breaches”, “prohibition of war crimes” and “basic rules of IHL”
are largely interchangeable, although the latter term is more frequently employed in the context of
State responsibility. See ILC, Fourth report on peremptory norms of general international law (jus
cogens) by Special Rapporteur D. Tladi, UN Doc. A/CN.4/727 (31 Jan. 2019), para. 116. State
responsibility for these acts is engaged when the conduct in question is attributable to a State,
whether or not individual criminal responsibility has also been established. See Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para. 173; ILC, Draft Articles on
Responsibility of States for Internationally Wrongful Acts, with commentaries, in YEARBOOK OF
THE INTERNATIONAL LAW COMMISSION 2001 (Vol. II, Pt. 2), Article 58 Commentary, para. 3 (“the
question of individual responsibility is in principle distinct from the question of State
responsibility”). Moreover, unlike individual criminal responsibility, “it is not necessary for the
Court to make findings of fact with regard to each individual incident alleged” for it to find State
responsibility. See Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168 (hereinafter, “Armed Activities
Judgment on the Merits”), para. 205. Rather, the Court has previously found a “coincidence of
reports from credible sources sufficient to convince it that … grave breaches of [IHL] were
committed”. Ibid., para. 207.
240
Territories (including East Jerusalem) have been established in breach of
international law”.965
3.132 Since the time of the Court’s previous Advisory Opinion, Israel has
permitted more than 47,000 additional Israeli settlers to move to East Jerusalem966
and 220,000 to move to Area C of the West Bank.967 Israel’s ongoing conduct
underscores the wilful and continuing nature of its violations of paragraph 6 of
Article 49.
2. Israel Violates the Rules Protecting Property in Occupied Territories
3.133 Article 46 of the Hague Regulations requires Israel to respect and not to
confiscate private property in the OPT. As to public property, Article 55 thereof
provides that Israel may act “only as administrator and usufructuary” and must
“administer [it] in accordance with the rules of usufruct”. Moreover, Article 53 of
the GC IV prohibits the “destruction … of real or person property belonging
individually or collectively to private persons, or to the State, or to other public
authorities, or to social or co-operative organizations … except where such
destruction is rendered absolutely necessary by military operations”. These have
been recognized as rules of customary international law.968
965 Wall Advisory Opinion, para. 120.
966 Peace Now, “Settlements Watch: Jerusalem” (last accessed: 24 Apr. 2023), available at
https://tinyurl.com/59x5jesd.
967 Peace Now, “Settlements Watch: Population” (last accessed: 13 July 2023), available at
https://tinyurl.com/y6pt6bej. In 2004, the number of settlers in the West Bank was 243,900. In 2021,
it has increased to 465,400.
968 ICRC, Rules of Customary International Law, Rule 51, available at
https://tinyurl.com/5hbbt2b6.
241
3.134 The “extensive … appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly”, is a grave breach of the GC
IV969 and amounts to a war crime under Article 8(2)(a)(iv) of the Rome Statute.
3.135 Israel violates the rules protecting property in the OPT by, inter alia,
unnecessarily confiscating land from Palestinians (described in paragraph 2.13),
demolishing Palestinians’ homes and evicting them from their property
(described in paragraphs 2.55-2.62), and restricting Palestinians’ access to land
(described in paragraphs 2.48-2.54, 2.72-2.74, and 2.100-2.101).
3.136 In 2019 the OHCHR observed that Israel’s measures amounting to the
“official or unofficial confiscation of land and limiting access through coordination
measures violate the prohibition on confiscation of private property enshrined in
international humanitarian law”.970 And in 2023, it concluded that Israel’s
“[p]unitive home demolitions … are prohibited by international humanitarian
law”.971
3. Israel Has Failed to Fulfil its Obligations to Protect Palestinians in the
West Bank from Violence
3.137 Article 27 of the GC IV requires Israel to ensure that the population of the
OPT “shall at all times be humanely treated, and shall be protected especially
against all acts of violence or threats thereof”. Article 32 thereof prohibits Israel
“from taking any measure of such a character as to cause the physical suffering …
969 Fourth Geneva Convention, art. 147.
970 Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and in the occupied Syrian Golan, UN Doc. A/HRC/40/42 (30 Jan. 2019), para. 41.
971 Human Rights Council, Annual report of the United Nations High Commissioner for Human
Rights and reports of the Office of the High Commissioner and the Secretary-General on the Human
rights situation in the Occupied Palestinian Territory, including East Jerusalem, and the obligation
to ensure accountability and justice, UN Doc. A/HRC/52/75 (13 Feb. 2023), para. 15.
242
of protected persons in their hands” including “murder, torture, corporal
punishment, mutilation and … any other measures of brutality whether applied by
civilian or military agents”. To discharge these duties, Israel must “ensure that
members of its own armed and police forces refrain from use of force towards the
inhabitants of the territory, unless the situation makes such use necessary”.972
3.138 “[W]ilfully causing great suffering or serious injury to body or health” and
torture are grave breaches of the GC IV973 and constitute war crimes under Article
8(2)(a)(ii) and (iii) of the Rome Statute.
3.139 Israel’s excessive use of force in exercising law enforcement authority,
including the commission of extrajudicial killings, as described in paragraphs
2.139-2.178, violate its obligations to protect Palestinians from violence. The
obligation is also violated by subjecting Palestinians who are administratively
detained to torture and cruel treatment, as described in paragraph 2.205.
3.140 Israel’s general obligation to ensure public order and safety under Article
43 of the Hague Regulations also requires it to “take all measures to protect the
inhabitants of [the OPT] from violence by third parties”, including “private groups
or individuals”.974 Israel may not “tolerate the activities of such groups, much less
support or even use them to promote their own purposes”.975 Israel fails to do so
by failing to prevent and punish violence perpetrated by settlers against
Palestinians, and tolerating such activities and using them to promote its own
972 D. Fleck, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW (4th Ed., OUP, 2021), p.
306, para. 9.08(1).
973 Fourth Geneva Convention, art. 147.
974 D. Fleck, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW (4th Ed., OUP, 2021), p.
307, para. 9.08(2).
975 Ibid.
243
purposes, as described in paragraphs 2.179-2.185. “[T]he Secretary-General and
the High Commissioner [on Human Rights] have stressed that, contrary to the
obligations of Israel as the occupying Power to ensure the safety and security of
the occupied population, settlers largely enjoy impunity for attacks against
Palestinians”.976
4. Israel Violates the Prohibition on Forcible Transfer in
Article 49(1) of the Fourth Geneva Convention
3.141 Article 49(1) of the GC IV prohibits “[i]ndividual or mass forcible transfers,
as well as deportations of protected persons from occupied territory to the territory
of the Occupying Power or to that of any other country …”.977 Although the GC
IV does not define “forcible transfer,” the Rome Statute defines it as the “forced
displacement of the persons concerned by expulsion or other coercive acts from the
area in which they are lawfully present”.978 According to the Secretary-General,
[F]orcible transfer … may be triggered by specific circumstances
that leave individuals or communities with no choice but to leave.
The existence of such circumstances constitutes what is known as a
coercive environment. Any transfer that occurs without the genuine
and fully informed consent of those affected is considered forcible.
However, genuine consent to a transfer cannot be presumed in an
environment marked by the use or threat of physical force, coercion,
fear of violence or duress.979
976 Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and in the occupied Syrian Golan, UN Doc. A/HRC/43/67 (30 Jan. 2020), para. 59.
977 Fourth Geneva Convention, art. 49.
978 Rome Statute, art. 7(2)(d).
979 Human Rights Council, Human rights situation in the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/34/38 (13 Apr. 2017), para. 28.
244
3.142 Forcible transfer constitutes a grave breach of the GC IV980 and is a war
crime under Article 8(2)(a)(vii) of the Rome Statute.
3.143 Israel’s measures have had the effect of coercing Palestinian residents of
the West Bank (including East Jerusalem) to leave their homes and land,
including land confiscations, home demolitions, forced evictions, systematic
violence, restrictions on residency rights.981 These constitute acts of prohibited
forcible transfer.
3.144 Indeed, many UN bodies have recognized that Israel is carrying out the
forcible transfer of Palestinians in the West Bank (including East Jerusalem). In
particular, just last year:
• In April 2022, the OHCHR observed that “[d]isplacement and
relocation to alternative residential areas as a result of such an
environment could amount to forms of forcible transfer, contrary to the
obligations of Israel under international humanitarian law and
international human rights law”.982
• In September 2022, the UN Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including Jerusalem, and
Israel concluded that Israel’s policies that “have contributed to the
forced displacement of the Palestinian population from certain areas,
altered the demographic composition of the Occupied Palestinian
Territory and resulted in Palestinian communities being almost
completely encircled by Israeli settlements, may constitute the crime
980 Fourth Geneva Convention, art. 147. See also Commentary of 1958 on Fourth Geneva
Convention, art. 147, available at https://tinyurl.com/2bezv7sa.
981 See supra Chapter 2, §§ I-IV.
982 Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and in the occupied Syrian Golan, UN Doc. A/HRC/49/85 (28 Apr. 2022), para. 53.
245
against humanity of deportation or forcible transfer of population under
article 7 (1) (d) of the Rome Statute”.983
5. Israel’s Application of Israeli Domestic Law Violates its
Obligation to Respect the Laws in Force
3.145 Under Article 43 of the Hague Regulations, Israel must respect the legal
and judicial system that existed in the West Bank before the occupation.984
Likewise, Article 64 of the GC IV provides that the “penal laws of the occupied
territory shall remain in force, with the exception that they may be repealed or
suspended by the Occupying Power in cases where they constitute a threat to its
security or an obstacle to the application of the [Fourth Geneva] Convention”. It is
widely understood that Article 64 applies to “the entire legal system of the occupied
territories”.985 Israel may thus only enact new laws in the OPT “which are essential
to enable [it] to fulfil its obligations under the [Fourth Geneva] Convention, to
maintain the orderly government of the territory, and to ensure [its own] security
…”. According to Sylvain Vité of the International Committee of the Red Cross,
“no other reason may be used to justify changes in the domestic legal order”. 986
3.146 Instead of taking “all the measures in [its] power” to ensure the respect for
the laws in force in West Bank at the time of occupation, it has affirmatively
displaced those laws and applied Israeli law in the West Bank, as explained in
983 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
86.
984 See Hague Regulations, art. 43.
985 D. Fleck, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW (4th Ed., OUP, 2021), para.
9.19(2).
986 S. Vité, “Occupation,” in B. Saul & D. Akande, THE OXFORD GUIDE TO INTERNATIONAL
HUMANITARIAN LAW (2020), p. 313.
246
Chapter 2, Section V. This is not “essential to enable [it] to fulfil its obligations”
as an occupying power, and therefore contravenes these IHL norms.
B. THE CONDUCT OF THE OCCUPATION IN GAZA VIOLATES
INTERNATIONAL HUMANITARIAN LAW
1. Israel Violates Basic Norms Governing the Use of Force
When Carrying Out Military Attacks on Gaza
3.147 Under IHL, Israel is obliged to abide by the basic norms governing the use
of force in carrying out military attacks on Gaza. Those norms require it (i) to apply
“elementary considerations of humanity” in the use of force, (ii) to distinguish
between military targets and civilians or civilian objects, and not to target civilians;
(iii) to use a proportionate amount of force in relation to the anticipated military
objective; and (iv) only to use force that is “actually necessary to accomplish a
legitimate military purpose”.987
3.148 The failure to comply with these obligations rises to the level of “grave
breaches” of the GC IV.988 In particular, the following acts, when committed
wilfully, constitute war crimes under the Rome Statute: killing of civilians;989
causing great suffering or serious injury to body or health;990 directing attacks
against the civilian population, individual civilians, and civilian objects;991
launching indiscriminate attacks affecting the civilian population or civilian objects
987 ICRC, Fundamental principles of IHL, available at https://tinyurl.com/ycks8x94; ICRC,
Military Necessity, available at https://tinyurl.com/mvjxtzfu.
988 Fourth Geneva Convention, art. 147.
989 Ibid., art. 147; Rome Statute, art. 8(2)(a)(i).
990 Fourth Geneva Convention, art. 147; Rome Statute, art. 8(2)(a)(iii).
991 Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I) (8 June 1977) (hereinafter, “Additional
Protocol I”), art. 85(3)(a); Rome Statute, arts. 8(2)(b)(i)-(ii).
247
in the knowledge that such attacks will cause excessive loss of life, injury to
civilians or damage to civilian objects;992 attacking or bombarding, by whatever
means, towns, villages, dwellings or buildings which are undefended and which
are not military objectives;993 and causing extensive destruction and appropriation
of property, not justified by military necessity and carried out unlawfully and
wantonly.994
3.149 As described above in Chapter 2, Section IV(A), Israel has
indiscriminately targeted civilians and implemented the so-called “Dahiya
Doctrine”. The defining feature of this doctrine is the excessive use of force in
heavily populated civilian areas. Its execution in the course of carrying out
military attacks on Gaza amount to the grave breaches identified in the preceding
paragraph. Moreover, there is evidence, as noted in paragraph 2.123, that such acts
were committed wilfully and therefore constitute war crimes.
2. Israel Has Failed to Fulfil its Obligations to Ensure the
Essential Needs of the Population, and Civil Life, in Gaza
3.150 Under Article 55(1) of the GC IV, Israel, as the occupying power, must
“ensur[e] the food and medical supplies of the population; it should, in particular,
bring in the necessary foodstuffs, medical stores and other articles if the resources
of the occupied territory are inadequate”.995 Measures that deprive the population
of food and medical supplies ipso facto violate this obligation. Likewise, under
992 Additional Protocol I, art. 85(3)(b); Rome Statute, art. 8(2)(b)(ii).
993 Rome Statute, art. 8(2)(b)(v). See also Armed Activities Judgment on the Merits, para. 208.
994 Fourth Geneva Convention, art. 147; Rome Statute, arts. 8(2)(a)(iv), 8(2)(b)(iv).
995 This article of the Fourth Geneva Convention, and all others not mentioned in Article 6 thereof,
continue to apply in Gaza because Article 6(3) of the Fourth Geneva Convention does not limit the
applicable provisions of GCIV in Gaza in the same way it does in the West Bank because “the
general close of military operations” has not yet occurred in Gaza. See Wall Advisory Opinion,
para. 125.
248
Article 56(1), Israel must “ensur[e] … the medical and hospital establishments and
services, public health and hygiene in the occupied territory”.996 At a minimum,
that means that “medical infrastructure of an occupied territory must be allowed to
continue to serve the local population”.997 Moreover, the general obligation to
ensure civil life under Article 43 of the Hague Convention requires Israel to refrain
from disrupting civil life in Gaza.
3.151 Through its blockade, Israel has violated all of these obligations. In
particular, it has
• Deprived Gaza of food and medical supplies, as described in
paragraphs 2.94-2.97, 2.99-2.101, and 2.103;
• Impeded the functioning of the medical and public health
infrastructure, including the sanitation infrastructure, as described in
paragraphs 2.98-2.99; and
• Prevented the normal functioning of civil life by, inter alia,
subjecting the population to the spectre of violence (described in
paragraphs 2.108-2.136) and maintaining strict controls over imports
to, and exports from Gaza (as described in paragraphs 2.94-2.97).
3.152 As the UN Independent International Commission of Inquiry on the
Protests in the OPT concluded in 2019,
As the occupying Power, Israel has obligations under international
law to ensure the health and welfare of the Palestinian population.
The commission found that the ongoing blockade of Gaza and its
impact on the health-care system in Gaza, and the ensuing
deprivation of essential goods and services necessary for a dignified
life, including basic medical supplies, safe drinking water,
996 Fourth Geneva Convention, art. 56.
997 D. Fleck, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW (4th Ed., OUP, 2021), para.
9.40(2).
249
electricity and sanitation, constitute violations of the fundamental
rights to life and health ….998
3. Israel’s Measures in Gaza Constitute Prohibited Collective Punishment
3.153 International law prohibits the imposition of penalties or restrictions of any
kind on a collective basis. Article 50 of the Hague Regulations provides: “No
general penalty, pecuniary or otherwise, shall be inflicted upon the population on
account of the acts of individuals for which they cannot be regarded as jointly and
severally responsible.” And Article 33 of the GC IV establishes: “No protected
person may be punished for an offence he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism are
prohibited.”
3.154 The Handbook of Humanitarian Law in Armed Conflict describes
collective punishment this way:
Collective penalties … and all measures of intimidation and
terrorism carried out by the occupying power have usually one
purpose: to force the population of the occupied territory to submit
to their authority. Such measures may take different forms, such as
a curfew … preventing the inhabitants from fulfilling their daily
duties, punishment or detention of several members of a group or
family for an alleged offense by one of their members, or the
destruction of the house belonging to the family of an alleged
offender. Such acts are prohibited, without exception, by Article 33
[of the GC IV].999
3.155 As explained, Israel has conducted attacks, destroyed civilian structures and
infrastructure, imposed restrictions on the freedom of movement, restricted the
998 Human Rights Council, Report of the independent international commission of inquiry on the
protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 100.
999 D. Fleck, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW (4th Ed., OUP, 2021), para
9.09(3).
250
movement of goods, limited the electricity available, and established buffer zones
in Gaza.1000
3.156 Over 2.2 million people live in Gaza and the vast majority are civilians. Yet
all Gazans suffer the consequences of Israel’s military attacks. According to the
UN Secretary-General, they suffer a “significant negative impact on the enjoyment
of economic, social and cultural rights” caused by Israel’s blockade.1001
3.157 In assessing whether the measures Israel has taken in Gaza amount to
collective punishment, Human Rights Watch has suggested that “account must be
taken of the timing, duration, and extent of the measures imposed, the reasons
invoked by the occupying power for the restrictive measures, the proportionality of
those measures to the reasons invoked, and the effect of the measures on the
population affected”.1002 The pattern of military attacks and the blockade, which
have dominated and severely impaired every aspect of life in Gaza for over 15 long
years, are not proportionate to achieving any legitimate security goals. It
unmistakably amounts to a prohibited collective punishment.
1000 See supra Chapter 2, §§ III(B) and IV(A)-(B).
1001 UNGA, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/73/420 (10 Oct. 2018) (Dossier No.
859), para. 9.
1002 Human Rights Watch, The Obligations of Israel and the Palestinian Authority Under
International Law (2001), available at https://tinyurl.com/4t53z5du, p. 23.
251
3.158 This conclusion is echoed by various UN bodies1003 and reputable human
rights organizations.1004 In the words of the Secretary-General, Israel is “penalizing
persons for acts that they did not commit”.1005
C. ISRAEL’S MEASURES CONCERNING THE NATURAL RESOURCES AND
ECONOMY OF THE OCCUPIED PALESTINIAN TERRITORY
VIOLATE ITS OBLIGATIONS AS AN OCCUPYING POWER
3.159 Under the general principles of the law of occupation, Israel “must only
take measures for the benefit of the local economy, and not for its own economic
interests, while respecting, as a point of departure, the status quo ante”.1006 It is
1003 See, e.g., UNGA, Israeli practices affecting the human rights of the Palestinian people in the
Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/70/421 (14 Oct. 2015)
(Dossier No. 856), para. 29; UNGA, Israeli practices affecting the human rights of the Palestinian
people in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/72/565 (1 Nov.
2017) (Dossier No. 858), para. 28; OHCHR, Press Release: Closure of Gaza commercial crossing:
UN expert calls on Israel to reverse decision (13 July 2018), available at
https://tinyurl.com/mtfrx3y9 (“Israel’s 11-year-old air, sea and land blockade has driven Gaza’s
social and economic conditions steadily backwards. This amounts to the collective punishment of
the two million residents of Gaza, which is strictly prohibited under the Fourth Geneva
Convention.”); UNGA, Israeli Practices Affecting the Human Rights of the Palestinian People in
the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/73/420 (10 Oct. 2018)
(Dossier No. 859), paras. 7, 9; UNGA, Israeli Practices Affecting the Human Rights of the
Palestinian People in the Occupied Palestinian Territory, including East Jerusalem, UN Doc.
A/74/468 (2 Oct. 2019) (Dossier No. 860), para. 22; Human Rights Council, Report of the
Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, UN Doc. A/HRC/50/21 (9 May 2022), para. 42; UNGA, Report of the
Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 20.
1004 See, e.g., Euro-Med Human Rights Monitor, The Gaza Strip: Undocumented Citizens (Mar.
2021), available at https://tinyurl.com/56269m5r, pp. 38-39; Human Rights Council, Joint NGO
Statement on the human rights situation in Palestine, UN Doc. A/HRC/24/NGO/51 (22 Aug. 2013),
p. 2 (“In applying the closure, Israel has declared its intention to wage ‘economic warfare’. This
illegal policy constitutes a form of collective punishment of the civilian population, in violation of
Article 33 of the Fourth Geneva Convention.”).
1005 UNGA, Israeli practices affecting the human rights of the Palestinian people in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. A/72/565 (1 Nov. 2017) (Dossier No.
858), para. 18.
1006 E. Lieblich & E. Benvenisti, OCCUPATION IN INTERNATIONAL LAW (2022), p. 203.
252
“entitled to a limited use of natural resources of an occupied territory”.1007 More
specifically, as the UN Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including Jerusalem, and Israel explained, Israel
“must safeguard the capital of those properties [the natural resources of the OPT]
and administer them in accordance with the rules of usufruct”.1008
3.160 The obligation to “safeguard the capital” means that, with respect to nonrenewable
resources already being exploited, the occupying power may permit
continued exploitation, but it must “refrain from diminishing the resource beyond
what the owner itself would have done, as evidenced by the production levels
ante”.1009 Moreover, the resources, “or the proceeds from selling them,” can only
be used to meet “the needs of the local population and the occupant’s security
interests, not economic exploitation”.1010 New resource extraction is generally
considered to be impermissible.1011
3.161 In addition, Articles 28 and 47 of the Hague Regulations, along with Article
33 of the GC IV, prohibit the act of pillage. This applies to all types of property,
whether belonging to private persons or to the State.1012 “[T]he core of the wrong
of pillage is in the taking of property for private use”, which can include taking it
1007 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
40.
1008 Ibid.
1009 E. Lieblich & E. Benvenisti, OCCUPATION IN INTERNATIONAL LAW (2022), § 6.3.2.
1010 Ibid., § 6.3.3.
1011 See ibid. (“the language of article 55 … cannot accommodate, as “safeguarding the capital,”
resource exploitation beyond the levels of production that the sovereign would have undertaken
anyway. … The principle of “permanent sovereignty” too pushes for the more restrictive
understanding of the rule concerning the extraction of new resources”.).
1012 Ibid., § 6.1.1.
253
“for the benefit of a third party”.1013 Thus, the “unjustified exploitation of resources
by the occupant for the benefit of third parties” and “granting concessions to third
parties in a manner inconsistent with the occupant’s trusteeship duties” violate the
prohibition on pillage.1014
3.162 Israel has violated these prohibitions by treating the economic resources
of the OPT as its own. In particular, its appropriation of the OPT’s water,
hydrocarbon and mineral resources, and the utilization of those resources to
economically benefit Israel and the settlements (as described in paragraphs 2.23
and 2.247-2.256) violate its obligations as an occupying power to safeguard the
OPT’s natural resources. They also amount to the act of pillage because the natural
resources of the OPT have been taken for the private use of Israelis.
3.163 Indeed, in 2022, the UN Independent International Commission of Inquiry
on the Occupied Palestinian Territory, including Jerusalem, and Israel determined
that Israel’s exploitation of the OPT’s natural resources may violate the IHL
prohibitions on pillage,1015 and that they “may amount to the war crime of pillage
under the article 8 (2) (b) (xvi) of the Rome Statute”.1016
1013 Ibid.
1014 Ibid.
1015 See UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), paras.
31-40.
1016 Ibid., para. 87.
254
IV. The Conduct of the Occupation Entails Crimes against Humanity
3.164 In addition to committing serious breaches of international human rights
law and international humanitarian law during its occupation, Israel has also
committed numerous crimes against humanity in the OPT.
3.165 Crimes against humanity “deeply shock the conscience of humanity” and
“threaten the peace, security and well-being of the world”.1017 The actus rei of
crimes against humanity include the gravest offences: murder, extermination,
enslavement, forcible transfer, arbitrary detention, torture, sexual violence,
persecution, enforced disappearance, and apartheid.1018 In order to constitute a
crime against humanity, these acts must be “committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the
attack”.1019
3.166 As affirmed by the ILC on multiple occasions,1020 the prohibition of crimes
against humanity is jus cogens. As a peremptory norm of general international law,
the prohibition is binding on Israel and no circumstances whatsoever can be
invoked to derogate from it. Article 7 of the Rome Statute, which applies in the
1017 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), Preamble.
1018 Ibid., art. 2. See also Rome Statute, art. 7(1).
1019 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2. See also Rome Statute, art. 7(1).
1020 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), Preamble Commentary, para. 5 (noting that the peremptory status of the prohibition of crimes
against humanity is “clearly accepted and recognized”); ILC, Peremptory norms of general
international law (jus cogens): Texts of the draft conclusions and Annex adopted by the Drafting
Committee on second reading, UN Doc. A/CN.4/L.967 (11 May 2022), Conclusion 23 (Annex (c)).
255
OPT, also provides for individual criminal responsibility for crimes against
humanity.
3.167 That said, as the Court has affirmed, individual criminal responsibility need
not be established in order to a State to be found responsible for international
crimes.1021 Moreover, in the context of ascertaining State responsibility, “it is not
necessary for the Court to make findings of fact with regard to each individual
incident alleged”.1022 Instead, just as in the context of grave breaches of IHL, the
Court should find a “coincidence of reports from credible sources sufficient to
convince it that” crimes against humanity were committed.1023
3.168 In light of all of its conduct described in Chapter 2 above, there can be no
doubt that Israel has committed and continues to commit numerous crimes against
humanity in the OPT. As a threshold matter, as found by multiple international
human rights organizations,1024 Israel’s conduct of the occupation amounts to an
(i) “attack directed against [a] civilian population” that is both (ii) “widespread”
and (iii) “systematic”.1025
3.169 “An “attack directed against [a] civilian population” is defined as “a course
of conduct involving the multiple commission” of prohibited acts “against any
1021 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para.
173. See also ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2001 (Vol. II, Pt. 2),
Article 58 Commentary, para. 3 (“the question of individual responsibility is in principle distinct
from the question of State responsibility”).
1022 See Armed Activities Judgment on the Merits, para. 205.
1023 Ibid., para. 207.
1024 See, e.g., Amnesty International 2022 Report, p. 30; HRW 2021 Report, pp. 10, 29-30, 186,
204.
1025 The requirement of “knowledge of the attack” is most relevant in the context of individual
criminal responsibility. When the State acts through its agents in furtherance of its own policy of
attacking a civilian population, it unavoidably does so with knowledge of the attack.
256
civilian population, pursuant to or in furtherance of a State or organizational policy
to commit such attack”.1026 The International Criminal Tribunal for the former
Yugoslavia (“ICTY”) explained in Tadić that “[t]raditionally this requirement was
understood to mean that there must be some form of policy to commit these acts.
… Importantly, however, such a policy need not be formalized and can be deduced
from the way in which the acts occur”.1027 Little deduction is required in the case
of the occupation; by definition it is an Israeli State policy that affects all
Palestinians in the OPT. Moreover, as discussed throughout Chapter 2, Israel’s
means and methods used to enforce the occupation are overwhelmingly directed
against civilians.1028
3.170 The attacks Israel commits in the course of the occupation are also
“widespread”. In distilling the jurisprudence of multiple international criminal
tribunals, the ILC explained that the adjective “widespread” “refers to a
‘multiplicity of victims’ and excludes isolated acts of violence … [a] ‘widespread’
attack may be ‘massive, frequent, carried out collectively with considerable
seriousness and directed against a multiplicity of victims’”.1029 Millions of
1026 Rome Statute, art. 7(2)(a). See also ILC, Draft Articles on Prevention and Punishment of Crimes
against Humanity, with commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW
COMMISSION 2019 (Vol. II, Pt. 2), Article 2 Commentary, para. 17.
1027 ICTY, Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-T, Opinion and Judgment (7
May 1997), Trial Chamber, para. 653. See also ILC, Draft Articles on Prevention and Punishment
of Crimes against Humanity, with commentaries (2019), in YEARBOOK OF THE INTERNATIONAL
LAW COMMISSION 2019 (Vol. II, Pt. 2), pp. 34-42.
1028 As held by a Trial Chamber of the ICC, “[w]here an attack is carried out in an area containing
both civilians and non-civilians, factors relevant to determining whether an attack was directed
against a civilian population include the means and methods used in the course of the attack, the
status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes
committed in its course, the form of resistance to the assailants at the time of the attack, and the
extent to which the attacking force complied with the precautionary requirements of the laws of
war.” See ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment
pursuant to Article 74 of the Statute (21 Mar. 2016), Trial Chamber III, para. 162.
1029 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), Article 2 Commentary, para. 12.
257
Palestinians are the collective victims of Israel’s massive military occupation on a
daily basis; this is nothing if not serious.
3.171 Israel’s attacks are finally “systematic” in that they proceed from “an
organized plan in furtherance of a common policy, which follows a regular pattern
and results in a continuous commission of acts”.1030 They are also systematic
because they entail a “‘patterns of crimes’ such that the crimes constitute a ‘nonaccidental
repetition of similar criminal conduct on a regular basis’”.1031 As
demonstrated in Chapter 2 above, the occupation is painstaking in its cruelty, and
involves a well-documented pattern of policies and practices that have been
repeated and honed over decades.
3.172 In the context of its widespread and systematic attack against the Palestinian
civilian population, Israel has committed multiple crimes against humanity. Most
prominent among these is the crime of apartheid. As explained in Chapter 4,
Section II below, Israel’s entire occupation, viewed as a whole, amounts to a
regime of apartheid. Within this regime, Israel has also committed the crimes
against humanity of murder (Section A), deportation and forcible transfer (Section
B), arbitrary detention (Section C), enforced disappearance (Section D), other
inhumane acts of a similar character (Section E) and persecution (Section F).
A. MURDER
3.173 Any killing or deprivation of life by the perpetrators of a widespread or
systematic attack on a civilian population, with knowledge of the attack, amounts
to the crime against humanity of murder.1032 As explained above, Israel has killed
1030 Ibid., Article 2 Commentary, para. 16.
1031 Ibid., Article 2 Commentary, para. 15.
1032 See, e.g., International Criminal Court, Elements of Crimes (2013), art. 7(1)(a) (“Elements 1.
The perpetrator killed one or more persons. 2. The conduct was committed as part of a widespread
or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct
258
thousands of Palestinians over the past two decades alone, breaching numerous
norms of IHRL and IHL.1033 Israel has, inter alia:
• Targeted and killed unarmed civilians, including women, children, the
disabled and the elderly;1034
• Used wanton and excessive force against civilians in the context of law
enforcement activities, routinely resulting in numerous deaths,
particularly among children;1035 and
• Targeted civilians and civilian objects in its armed attacks on Gaza, and
used indiscriminate and disproportionate force in areas where civilians
were present.1036
3.174 Among the most obvious examples of Israel’s commission of the crime
against humanity of murder is its killing of more than two hundred civilian
protestors during the 2018-2019 Great March of Return in Gaza. As detailed in
Chapter 2, Section IV(B), the UN Independent International Commission of
Inquiry on the Protests in the OPT found that Israel intentionally targeted civilian
demonstrators posing no imminent threat to life pursuant to unlawful rules of
engagement. In addressing individual criminal responsibility, it expressly stated:
“In the course of the investigation, the commission found serious human rights
violations that may constitute crimes against humanity” including “[m]urder and
‘other inhumane acts’ that cause great suffering or serious injury”.1037 While
insufficient to establish individual criminal responsibility for specific perpetrators,
was part of or intended the conduct to be part of a widespread or systematic attack against a civilian
population”), note 7 (“The term ‘killed’ is interchangeable with the term ‘caused death’.”), available
at https://tinyurl.com/mdvf3hak.
1033 See supra Chapter 2, § IV; Chapter 3, §§ II-III.
1034 See supra Chapter 2, §§ IV(C).
1035 See supra Chapter 2, §§ IV(B)-(C).
1036 See supra Chapter 2, §§ IV(A), IV(C).
1037 Human Rights Council, Report of the independent international commission of inquiry on the
protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/74 (6 Mar. 2019), para. 115.
259
the Commission’s findings of fact are sufficient to establish Israel’s State
responsibility in accordance with the evidentiary standard applied by the Court.1038
The Court thus should so conclude.
B. DEPORTATION AND FORCIBLE TRANSFER
3.175 As explained in Section III(A)(4) above, Israel has committed grave
breaches of IHL through its forcible transfer of Palestinian civilians from their
homes in the West Bank, including East Jerusalem. This also amounts to the crime
against humanity of “deportation or forcible transfer of population”, which is
defined as the “forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present, without grounds
permitted under international law”.1039
3.176 In September 2022, the UN Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel
concluded that Israel’s policies that “have contributed to the forced displacement
of the Palestinian population from certain areas, altered the demographic
composition of the Occupied Palestinian Territory and resulted in Palestinian
communities being almost completely encircled by Israeli settlements, may
constitute the crime against humanity of deportation or forcible transfer of
population under article 7 (1) (d) of the Rome Statute”.1040
1038 See Armed Activities Judgment on the Merits, para. 207 (finding the existence of a “coincidence
of reports from credible sources sufficient to convince it that … grave breaches of international
humanitarian law were committed”.).
1039 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(2)(d). See also Rome Statute, art. 7(1)(d).
1040 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
86.
260
3.177 In light of the evidence presented above, the Court can and should
definitively declare that Israel’s conduct does constitute the crime against humanity
of deportation or forcible transfer.
C. ARBITRARY DETENTION
3.178 “[I]mprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law” constitutes a crime against humanity.1041
This includes arbitrary detention.1042
3.179 As explained in Sections II(B) and (L) above, Israel’s draconian system of
administrative detention of Palestinians—i.e., without charge or trial and on the
basis of secret evidence—violates human rights norms.1043 In her most recent
report, the OPT Special Rapporteur documented “widespread and systematic
arbitrary deprivation of liberty in the occupied Palestinian territory”,1044 which may
entail individual criminal responsibility for the crime against humanity of
deprivation of liberty.1045 She explained the magnitude of the phenomenon, and its
centrality to the occupation:
Deprivation of liberty has been a central element of Israel’s
occupation since its inception. Between 1967-2006 Israel has
incarcerated over 800,000 Palestinians in the occupied territory.
Although spiking during Palestinian uprisings, incarceration has
1041 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(1)(e). See also Rome Statute, art. 7(1)(e).
1042 See Human Rights Council, Opinions adopted by the Working Group on Arbitrary Detention at
its ninety-second session, 15-19 November 2021: Opinion No. 61/2021 concerning Jamal Afif
Suleiman al-Niser (Israel), UN Doc. A/HRC/WGAD/2021/61(3 Dec. 2021), para. 57.
1043 See supra Chapter 2, § V; Chapter 3, § II(B).
1044 Human Rights Council, Report of Special Rapporteur F. Albanese on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/53/59 (9 June 2023),
para. 1.
1045 Ibid., paras. 9, 22-25.
261
become a quotidian reality. … Approximately 7,000 Palestinians,
including 882 children, were arrested in 2022. Currently, almost
5,000 Palestinians, including 155 children, are detained by Israel,
1,014 of them without charge or trial.1046
3.180 Similarly, the UN Working Group on Arbitrary Detention has noted a
“familiar pattern” of Israel’s arbitrary detention of Palestinians, recalling that such
detentions may amount to crimes against humanity.1047 Israel is therefore
responsible for the crime against humanity of arbitrary detention.
D. ENFORCED DISAPPEARANCE
3.181 Enforced disappearance as a crime against humanity is defined as
[T]he arrest, detention or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization, followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing them from the
protection of the law for a prolonged period of time.1048
3.182 As explained in Section II(B) above, Israel has carried out multiple
enforced disappearances in carrying out its occupation of the OPT, in breach of its
international human rights obligations. This occurs when individuals—and
1046 Ibid., para. 6.
1047 Human Rights Council, Opinions adopted by the Working Group on Arbitrary Detention at its
ninety-second session, 15-19 November 2021: Opinion No. 61/2021 concerning Jamal Afif
Suleiman al-Niser (Israel), UN Doc. A/HRC/WGAD/2021/61, para. 57 (“The Working Group notes
that many of the cases involving administrative detention in Israel and the Occupied Palestinian
Territory follow a familiar pattern of indefinite detention through consecutive administrative
detention orders without charges or trial (often based on secret evidence and often under military
jurisdiction), and with limited or no judicial recourse to review the lawfulness of the detention. The
Working Group recalls that under certain circumstances, widespread or systematic imprisonment
or other severe deprivation of liberty in violation of the rules of international law may constitute
crimes against humanity.”).
1048 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(2)(i).
262
particularly children—are arrested and detained without their families being
informed.1049 It also occurs when Israeli authorities “conceal[] the detention,
whereabouts, and fate of a person or body”.1050 Given their use in the context of
Israel’s systematic and widespread attack against the Palestinian people, these
enforced disappearances also amount to crimes against humanity. The Court should
thus conclude that Israel has committed the crime of enforced disappearance.
E. OTHER INHUMANE ACTS
3.183 Crimes against humanity are not limited to those specifically enumerated
and defined by the ILC and the Rome Statute, but also include “other inhumane
acts of a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health”.1051 Among other actions, Israel’s collective
punishment and blockade of Gaza easily meet these conditions.
3.184 As explained in Chapter 2, Sections III(B), IV(A) and IV(B), Israel’s
blockade of and attacks on Gaza cause great suffering, and have had widespread
detrimental impacts on the physical and mental health of Palestinians living there.
According to the UNRWA: “Food insecurity and rising poverty mean that most
residents cannot meet their daily caloric requirements, while over 90 per cent of
the water in Gaza has been deemed unfit for human consumption.”1052 Moreover,
“[a]cross the Gaza Strip, psychological trauma, poverty and environmental
1049 Human Rights Council, Report of Special Rapporteur F. Albanese on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/53/59 (9 June 2023),
para. 67.
1050 Ibid., para. 78.
1051 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(1)(k); Rome Statute, art. 7(1)(k).
1052 UNRWA, “Health in the Gaza Strip” (last accessed: 17 July 2023), available at
https://tinyurl.com/4m55nkpx.
263
degradation have had a negative impact on residents’ physical and mental
health”.1053
3.185 The collective punishment inflicted on Gaza is also an inhumane act similar
in character to other crimes against humanity described above. The Palestinians of
Gaza are effectively confined in the “world’s largest open air prison”,1054
amounting to a “severe deprivation of physical liberty in violation of fundamental
rules of international law”.1055 The blockade of Gaza is also akin to a form of
persecution in that it discriminatorily deprives Palestinians of their most
fundamental human rights. Furthermore, Israel’s control and isolation of Gaza is a
key tool in its apartheid regime of racial domination and oppression.1056
F. PERSECUTION
3.186 Persecution is defined as “the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the
group or collectivity”.1057 In order to amount to a crime against humanity,
persecution must also be carried out “in connection with any act” that itself
constitutes the actus reus of a crime against humanity.1058 The ILC has explained
that this “connection” requirement “provides guidance as to the nature of the
1053 Ibid.
1054 R. Høvring, “Gaza: The world’s largest open-air prison,” Norwegian Refugee Council (26 Apr.
2018), available at https://tinyurl.com/2xnx4kw6.
1055 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(1)(e).
1056 See infra Chapter 4, Section II.
1057 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(2)(g). See also Rome Statute, art. 7(2)(g).
1058 ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries (2019), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt.
2), art. 2(1)(h). See also Rome Statute, art. 7(1)(h).
264
persecution that constitutes a crime against humanity, specifically persecutory acts
of a similar character and severity to” other crimes against humanity.
3.187 Accordingly, murder, detention, and expulsion have all been found to
constitute persecutory acts when carried out against civilians by reason of their
racial, ethnic or other identity.1059 Other affronts to human dignity—including
humiliation, psychological abuse, and incitement1060—may also contribute to a
finding of persecution depending on “their cumulative effect”.1061 The same is true
of the destruction of homes and property,1062 or acts targeting cultural and religious
property and symbols.1063 Overall, “acts of persecution must be evaluated not in
isolation but in context, by looking at their cumulative effect” and “overall
consequences”.1064
3.188 Human Rights Watch has confirmed that Israel is “committing the crime
against humanity of persecution based on the discriminatory intent behind Israel’s
1059 ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Trial Chamber Judgment (14 Jan.
2000), para. 600.
1060 ICTR, Prosecutor v. Nahimana et al., Case No. ICTR-99-52, Appeals Chamber Judgment (28
Nov. 2007), paras. 986-988.
1061 ICTY, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Appeals Chamber Judgment (28
Feb. 2005), para. 325.
1062 ICTY, Prosecutor v. Blaskić, Case No. IT-95-14-T, Trial Chamber Judgment (3 Mar. 2000),
para. 234; ICTY, Prosecutor v. Kordić & Cerkez, Case No. IT-95-14/2, Trial Chamber Judgment
(26 Feb. 2001), paras. 203-206.
1063 ICTY, Prosecutor v. Blaskić, Case No. IT-95-14-T, Trial Chamber Judgment (3 Mar. 2000),
para. 227 (“Persecution may thus take the form of confiscation or destruction of … symbolic
buildings”); ICTY, Prosecutor v. Kordić & Cerkez, Case No. IT-95-14/2, Trial Chamber Judgment
(26 Feb. 2001), para. 207; ICTY, Prosecutor v. Brđanin, Case No. IT-99–36-T, Trial Chamber
Judgment (1 Sept. 2004), para. 1050 (“[T]he persecutorial campaign against Bosnian Muslims and
Bosnian Croats included … destruction of properties, religious and cultural buildings … These acts
were discriminatory in fact and were committed by the perpetrators with the requisite discriminatory
intent on racial, religious and political grounds”).
1064 ICTY, Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Trial Chamber Judgment (14 Jan.
2000), para. 622.
265
treatment of Palestinians and the grave abuses it has carried out in the OPT”.1065
Similarly, the UN Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel found in 2022
that Israel’s practices of altering the demographic character of the OPT “may also
amount to the crime against humanity of persecution under article 7 (1) (h) of the
Rome Statute”.1066
3.189 Indeed, as demonstrated in Sections II(A)-(L) above, Palestinians face
extreme discrimination in the enjoyment of their most basic civil, political,
economic, social and cultural rights. As described throughout Chapter 2, not only
does Israel impose de jure discrimination through its dual legal system, it also
enforces policies severely depriving Palestinians of land, water, food, housing,
healthcare, economic opportunities and freedom of movement. This is
accompanied by routine and extreme acts of violence, incitement and hate speech,
and the deliberate targeting and erasure of Palestinian religion and culture.
Cumulatively, these measures mean that, by virtue of their identity, Palestinians
are either driven from their homes due to dire living conditions, or are forced to
face daily indignities in their own homeland. They amount to persecution and the
Court should so declare.
1065 HRW 2021 Report, p. 205.
1066 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para.
86.
267
CHAPTER 4
ISRAEL’S PROLONGED SETTLER-COLONIAL OCCUPATION OF
PALESTINIAN TERRITORY VIOLATES INTERNATIONAL LAW
4.1 As detailed above in Chapter 3, the conduct of Israel’s occupation of the
Palestinian territory violates numerous rules and principles of international law,
including IHRL and IHL. Beyond that, the mere existence of the occupation—as
distinct from the conduct thereof—is itself illegal because it violates the right to
self-determination and the prohibition of apartheid, two peremptory norms of
international law. Those egregious violations of two of the most basic precepts of
international law inhere in the very existence of the occupation, rendering it illegal
as a whole or “existentially illegal”.1067 The only remedy in circumstances like
these is for the occupation to come to an immediate end.1068
4.2 This chapter shows that Israel’s prolonged occupation of the OPT entails
the indefinite violation of the right to self-determination (Section I) and constitutes
a regime of apartheid (Section II). For each of these reasons, Israel’s occupation is
illegal as a whole and must end.
1067 Human Rights Council, Report of Special Rapporteur F. Albanese on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/53/59 (9 June 2023),
para. 98. See also Y. Ronen, “Illegal Occupation and Its Consequences,” Research Paper No. 17-
08 (30 Oct. 2008), p. 210 (“In essence, it defines an illegal occupation as one that rests on the
violation of a peremptory norm that operates erga omnes and is innate to the existence of the
occupation.”); O. Ben-Naftali et al., “Illegal Occupation: Framing the Occupied Palestinian
Territory,” 23 BERKELEY JOURNAL OF INTERNATIONAL LAW 551 (2005), pp. 554-556; A. Imseis,
“Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967-
2020,” 31(3) EUROPEAN JOURNAL OF INTERNATIONAL LAW 1055 (2020), pp. 1072-73.
1068 See infra Chapter V(I).
268
I. Israel’s Prolonged Occupation Is Illegal as a Whole Because It Indefinitely
Violates the Right of the Palestinian People to Self-Determination
4.3 Israel’s prolonged occupation of the OPT is existentially illegal because it
indefinitely violates the right of the Palestinian people to self-determination. The
principle of self-determination is a foundational principle of the international legal
order, a jus cogens norm. As enshrined in the UN Charter, one of the purposes and
principles of the United Nations is to “develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of
peoples”.1069 The principle of self-determination was further codified in 1966 with
the adoption of the ICCPR and ICESCR.1070
4.4 Specifically, Article 1 common to both Covenants provides:
1. All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the
principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-
1069 UN Charter, art. 1(2). See also ibid., art. 55 (which refers to “conditions of stability and wellbeing
which are necessary for peaceful and friendly relations among nations based on respect for
the principle of equal rights and self-determination”); ibid., art. 56 (“All Members pledge
themselves to take joint and separate action in co-operation with the Organization for the
achievement of the purposes set forth in Article 55.”); ibid., art. 73.
1070 See ICCPR, art. 1; International Covenant on Economic, Social and Cultural Rights (16 Dec.
1966), 993 U.N.T.S. 3 (hereinafter, “ICESCR”), art. 1.
269
determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations.1071
4.5 The right to self-determination acquired particular prominence in the
context of decolonization, in which it served as a guiding principle for numerous
peoples’ emancipation from colonial powers. UN Resolution 1514 (XV) of 14
December 1960 titled “Declaration on the Granting of Independence to Colonial
Countries and Peoples” affirmed at the outset that “[t]he subjection of peoples to
alien subjugation, domination and exploitation constitutes a denial of fundamental
human rights [and] is contrary to the Charter of the United Nations”.1072 To
encourage and achieve decolonization, the General Assembly recognized in that
Declaration that “[a]ll peoples have an inalienable right to complete freedom, the
exercise of their sovereignty and the integrity of their national territory”1073 and
that “[a]ll peoples have the right to self-determination”.1074
4.6 The Court has described self-determination as “one of the essential
principles of contemporary international law”.1075 It has explained that the right to
self-determination extends to the people’s territory as a whole, the integrity of
1071 ICCPR, art. 1; ICESCR, art. 1.
1072 Colonial Declaration (14 Dec. 1960), para. 1.
1073 Ibid., Preamble.
1074 Ibid., para. 2.
1075 East Timor Judgment, para. 29. See also Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 (hereinafter, “Namibia
Advisory Opinion”) at p. 31; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12 at pp.
31-33; Wall Advisory Opinion, pp. 181–83; UNGA Res. 2625 (XXV), Annex, para. 3 (recognizing
the right to self-determination as one of the “basic principles of international law”).
270
which must be protected by the occupying power.1076 The ILC has identified the
right of self-determination as a peremptory norm of international law.1077
4.7 The Court has also recognized that the right of peoples to self-determination
has an erga omnes character.1078 As such, the existence and exercise of the right to
self-determination by a people must be respected by the entire international
community of States.1079 As the UN General Assembly has resolved,
[e]very State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and selfdetermination
of peoples, in accordance with the provisions of the
Charter, and to render assistance to the United Nations in carrying
out the responsibilities entrusted to it by the Charter regarding the
implementation of the principle.1080
1076 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 95 (hereinafter, “Chagos Advisory Opinion”), para. 160
(“The Court considers that the peoples of non-self-governing territories are entitled to exercise their
right to self-determination in relation to their territory as a whole, the integrity of which must be
respected by the administering Power. It follows that any detachment by the administering Power
of part of a non-self-governing territory, unless based on the freely expressed and genuine will of
the people of the territory concerned, is contrary to the right to self-determination.”).
1077 ILC, Draft conclusions on identification and legal consequences of peremptory norms of
general international law (jus cogens), with commentaries, UN Doc. A/77/10 (2022), Conclusion
23 (Annex (h)). See also ILC, Report of the International Law Commission on the work of its
Fifteenth Session (6 July 1963), Official Records of the General Assembly, Eighteenth Session,
Supplement (A/5509), UN Doc. A/CN.4/163 (6 July 1963), in YEARBOOK OF THE INTERNATIONAL
LAW COMMISSION 1963 (Vol. II), Article 37 Commentary, para. 3; ILC, Report of the International
Law Commission on the work of its Eighteenth Session (4 May-19 July 1966), Official Records of
the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.1), UN Doc.
A/CN.4/191 (4 May – 19 July 1966), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION
1966 (Vol. II), Article 50 Commentary, para. 3.
1078 See East Timor Judgment, para. 29 (in which the Court described the statement that selfdetermination
had an erga omnes character as being “irreproachable”). See also Chagos Advisory
Opinion, para. 180 (viewing the right of self-determination as having an erga omnes character).
1079 A. Tancredi, “Le droit à l’autodétermination du peuple palestinien,” in LA PALESTINE : D’UN
ETAT NON MEMBRE DE L’ORGANISATION DES NATIONS UNIES A UN ETAT SOUVERAIN (T. Garcia
(ed.), 2016), p. 42.
1080 UNGA Res. 2625 (XXV), pp. 123-124. See also Wall Advisory Opinion, para. 156.
271
4.8 In addition, “[e]very State has the duty to refrain from any forcible action
which deprives peoples … of their right to self-determination”.1081 As a result,
respect for a people’s right to self-determination entails an erga omnes obligation
to refrain from interfering with the exercise of that right, “hence also from
occupying a foreign territory in such a manner as to curtail the right of the foreign
peoples to self-determination”.1082
4.9 The right to self-determination is violated “whenever there is a military
invasion or belligerent occupation of a foreign territory, except where the
occupation—although unlawful—is of a minimal duration or is solely intended as
a means of repelling, under Article 51 of the UN Charter, an armed attack by the
vanquished Power and consequently is not protracted”.1083
4.10 Accordingly, where an occupation is not of a minimal duration—i.e., it is
indefinite, prolonged, or permanent—that indefinite infringement of the right to
self-determination renders the occupation in and of itself illegal.1084
1081 UNGA Res. 2625 (XXV), p. 124.
1082 A. Cassese, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL (Hersch Lauterpacht
Memorial Lectures, Series Number 12) (CUP, 1999), p. 66; UNGA, Report of the Human Rights
Committee, UN Doc. A/39/40 (1984), p. 143, para. 6; UNGA Res. 2625 (XXV), p. 124 (“Every
State has the duty to refrain from any forcible action which deprives peoples … in the elaboration
of the present principle of their right to self-determination and freedom and independence.”); Wall
Advisory Opinion, para. 156; Legal Consequences of the Separation of the Chagos Archipelago
from Mauritius in 1965, Separate Opinion of Judge Cançado Trindade, para. 119.
1083 A. Cassese, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL (Hersch Lauterpacht
Memorial Lectures, Series Number 12) (CUP, 1999), p. 99.
1084 See A. Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of
Palestine, 1967-2020,” 31(3) EUROPEAN JOURNAL OF INTERNATIONAL LAW 1055 (2020), pp. 1071-
72; UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/72/43106 (23 Oct. 2017), paras. 31-32; O.
Ben-Naftali et al., “Illegal Occupation: Framing the Occupied Palestinian Territory,” 23 BERKELEY
JOURNAL OF INTERNATIONAL LAW 551 (2005), pp. 554-556.
272
4.11 Israel’s occupation of the OPT for more than 55 years indefinitely violates
the right of the Palestinian people to self-determination and is therefore illegal as a
whole.1085
4.12 As set forth below, the Palestinian people are entitled to exercise their right
to self-determination on the entirety of the OPT (Section A). Among other effects,
Israel’s prolonged occupation has deprived the Palestinian people of a permanent
population (Section B); of a territory on which to realize their self-determination
(Section C); of the ability to exercise their collective will and determine their
internal political status (Section D); and of their right to freely pursue their
economic, social and cultural development (Section E). As such, the prolonged
occupation indefinitely violates the right of the Palestinian people to selfdetermination
and is thus existentially illegal.
A. THE PALESTINIAN PEOPLE ARE ENTITLED TO EXERCISE THEIR RIGHT TO
SELF-DETERMINATION ON THE OCCUPIED PALESTINIAN TERRITORY AS A WHOLE
4.13 There can be no dispute that the Palestinian people exist and have an
inalienable right to self-determination on the OPT. The Court itself has recognized
this, noting that “the existence of a ‘Palestinian people’ is no longer in issue”.1086
1085 Human Rights Council, Resolution 49/28, Rights of the Palestinian people to selfdetermination,
UN Doc. A/HRC/RES/49/28 (1 Apr. 2022), Preamble (“Reaffirming the right of the
Palestinian people to self-determination in accordance with the provisions of the Charter, relevant
United Nations resolutions and declarations, and the provisions of international covenants and
instruments relating to the right to self-determination as an international principle and as a right of
all peoples in the world, and emphasizing that this jus cogens norm of international law is a basic
prerequisite for achieving a just, lasting and comprehensive peace in the Middle East”); ibid., para.
7 (“Calls upon all States to ensure their obligations of non-recognition, non-aid or assistance with
regard to the serious breaches of peremptory norms of international law by Israel, in particular of
the prohibition of the acquisition of territory by force, in order to ensure the exercise of the right to
self-determination, and also calls upon them to cooperate further to bring, through lawful means,
an end to these serious breaches and a reversal of Israel’s illegal policies and practices”).
1086 Wall Advisory Opinion, para. 118.
273
The Court further stressed that the “Israeli-Palestinian Interim Agreement on the
West Bank and the Gaza Strip of 28 September 1995 also refers a number of times
to the Palestinian people and its ‘legitimate rights’”,1087 among which is the right
to self-determination.1088
4.14 The UN General Assembly has similarly recognized the right of the
Palestinian people to self-determination.1089 It has also recognized that the
Palestinian people are entitled to exercise their self-determination over their
territory as a whole, which Israel has occupied since 1967.1090 This is consistent
with the Court’s jurisprudence, which consecrates a people’s right to the territorial
integrity of their non-self-governing unit.1091
4.15 The Palestinian people’s territory covers Gaza and the West Bank,
including East Jerusalem, where Palestinian people have lived for millennia.1092
That is why the West Bank, including East Jerusalem, and the Gaza Strip, have
1087 Ibid. (citing Oslo II, Preamble, paras. 4, 7, 8; art. II, para. 2; art. III, paras. 1 and 3; art. XXII,
para. 2).
1088 Ibid.
1089 See UNGA, Resolution 2672/C (XXV), United Nations Relief and Works Agency for
Palestinian Refugees in the Near East, UN Doc. A/RES/2672(XXV) (8 Dec. 1970) (Dossier No.
946), Part C, para. 1 (which proclaimed that the People of Palestine were “entitled to equal rights
and self-determination, in accordance with the Charter of the UN”); UNGA, Resolution 2535/B
(XXIV), United Nations Relief and Works Agency for Palestine Refugees in the Near East, UN Doc.
A/RES/2535(XXIV)[B] (10 Dec. 1969) (Dossier No. 945); UNGA, Resolution 3236 (XXIX),
Question of Palestine, UN Doc. A/RES/3236(XXIX)[B] (22 Nov. 1974) (Dossier No. 382); UNGA,
Resolution 37/43, Importance of the universal realization of the right of peoples to selfdetermination
and of the speedy granting of independence to colonial countries and peoples for the
effective guarantee and observance of human rights, UN Doc. A/RES/37/43 (3 Dec. 1982) (Dossier
No. 298).
1090 UNGA, Resolution 43/177, Question of Palestine, UN Doc. A/RES/43/177 (15 Dec. 1988)
(Dossier No. 398), art. 2.
1091 Chagos Advisory Opinion, para. 160.
1092 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 26.
274
been consistently referred to by the international community, including the UN
General Assembly and the UN Security Council, as the occupied Palestinian
territory, leaving no doubt over who is entitled to that particular territory. For
example, in its resolution 67/19 which accorded observer State status to Palestine,
the UN General Assembly reaffirmed “the right of the Palestinian people to selfdetermination
and to independence in their State of Palestine on the Palestinian
territory occupied since 1967”.1093
4.16 In its Resolution 2334, the UN Security Council similarly called upon all
States “to distinguish, in their relevant dealings, between the territory of the State
of Israel and the territories occupied since 1967”.1094 The resolution thus made
clear that Israel has no claim or right to sovereignty over these territories, only the
Palestinian people do.1095
4.17 The right of the Palestinian people to self-determination and sovereignty
over their territory as a whole under international law thus could not be any clearer.
1093 UNGA, Resolution 67/19, Status of Palestine in the United Nations, UN Doc. A/RES/67/19 (29
Nov. 2012), para. 1 (emphasis added).
1094 UNSC Res. 2334 (2016), para. 5.
1095 See, e.g., UNSC Res. 242 (1967), para. 1 (“the fulfilment of Charter principles … should include
the application of both the following principles: (i) [w]ithdrawal of Israel armed forces from
territories occupied in the recent conflict; [and] (ii) … respect for and acknowledgement of the
sovereignty, territorial integrity and political independence of every State in the area”); UNSC,
Resolution 446 (1979), On establishment of a commission to examine the situation relating to
settlements in the Arab territories occupied by Israel, UN Doc. S/RES/446 (1979) (22 Mar. 1979)
(Dossier No. 1262), para. 3 (“Calls once more upon Israel … to desist from taking any action which
would result in changing the legal status and geographical nature and materially affecting the
demographic composition of the Arab territories occupied since 1967”).
275
B. ISRAEL’S OCCUPATION INDEFINITELY DEPRIVES THE PALESTINIAN PEOPLE
OF A PERMANENT POPULATION
4.18 Israel’s indefinite occupation of the OPT since 1967 is a continuation of a
settler-colonial project that long pre-dates the establishment of the State of
Israel.1096 That settler-colonial enterprise is intrinsic to the occupation itself. As
discussed in Chapter 2, Israel seeks to replace the Palestinian population with a
Jewish Israeli population through policies such as illegal settlements, forced
deportation, house demolitions, forced evictions, and other measures intended to
displace the Palestinian people from their territory and thereby deprive them of a
permanent population.
4.19 Arab Palestinians are among the original inhabitants of the OPT; they have
been the majority population there “for well over a millennium”.1097 Since 1967,
however, Israel has endeavoured to alter the demographic composition and
character of the OPT by replacing ethnic Palestinians with Israelis, notwithstanding
over 40 UN Security Council Resolutions admonishing Israel against doing so.1098
4.20 Israel has always aimed to permanently secure its effective control over the
vast majority of the OPT and settle its population there at the expense of
Palestinians, a quintessentially settler-colonial policy.1099 In the words of the OPT
Special Rapporteur Francesca Albanese: “From the onset of the occupation,
1096 See Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023). QWS,
Vol. II, Annex 1.
1097 R. Khalidi, THE HUNDRED YEARS’ WAR ON PALESTINE: A HISTORY OF SETTLER COLONIALISM
AND RESISTANCE, 1917-2017 (2020), pp. 75, 246.
1098 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 44.
1099 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), paras. 12-13. See
also Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023). QWS, Vol.
II, Annex 1.
276
successive Governments of Israel have acted as if that territory was ‘captured’ terra
nullius”.1100 But as Professor Khalidi explains in his accompanying report, the terra
nullius narrative is pure fiction:
Palestine in the early 20th century was not barren, empty, and
backward. Nonetheless, there is a vast body of literature filled with
historical misrepresentations, claiming that at that time the country
was sparsely inhabited by a small population of rootless nomads
who had no fixed identity and no attachment to the land they were
passing through, essentially as transients.
The corollary to this fiction is that the arrival of Zionist immigrants
‘made the desert bloom,’ turning the country into a lush garden, and
that only they had an identification with and love for the land, as
well as a (God-given) right to it. This attitude is summed up in the
slogan ‘A land without a people for a people without a land,’ used
by Christian supporters of a Jewish “return” to Palestine and by
early Zionists. To the European Zionists who came to settle it,
Palestine was terra nullius, with the population living there
nameless and amorphous. These falsehoods persist to this day, and
obscure the real history of the country in the modern era.1101
4.21 Indeed, for Israeli politicians, the OPT served to create “a Greater Eretz
Yisrael [land of Israel] from a strategic point of view, and establish a Jewish state
from a demographic point of view”.1102 Israeli policymakers have thus considered
1100 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 37.
1101 See Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023), p. 2.
QWS, Vol. II, Annex 1.
1102 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 38 (citing R.
Friedman, ZEALOTS FOR ZION: INSIDE ISRAEL’S WEST BANK SETTLEMENT MOVEMENT (Random
House, 1992) (speech of Israeli commander Yigad Allon).
277
Palestinians to be a demographic threat to the existence of Israel as a Jewish
State.1103
4.22 Recent Israeli government statements leave no doubt that the settlercolonialist
project on the OPT remains a State priority. The objective of ensuring
the Jewish Israeli character and domination across the OPT was explicitly affirmed
in the 2018 Basic Law: Israel – The Nation State of the Jewish People Israel. That
law describes the “Land of Israel”—understood to include the OPT—as “the
historical homeland of the Jewish People, in which the State of Israel was
established”, through which they fulfil their “historical right to self-determination”,
which is “exclusive to the Jewish People”.1104 In 2022, the newly sworn-in
government of Israel went even further, publishing “Guiding Principles” which
proclaim that the exercise of self-determination in “all areas of the Land of Israel”
is “exclusive” to the Jewish people.1105 As Professor Shlaim explains in his expert
1103 D. Perry & K. Laub, “In Israel, the ‘demographic issue’ gains resonance,” Times of Israel (20
Feb. 2014), available at https://tinyurl.com/kzzpbv3w (“Every moment we don’t separate from the
Palestinians is a clear threat to the existence of Israel as a Jewish state.”). See also UNGA, Report
of Special Rapporteur F. Albanese on the situation of human rights in the Palestinian territories
occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 13 (“Colonialism, a phenomenon
often disguised as a ‘civilization project’ and historically imposed by ‘Western countries’ on ‘third
world’ countries, was achieved through cultural subordination of the natives, economic exploitation
of their land and resources and suffocation of their political claims. Colonialism is characterized as
‘settler’ when also driven by the logic of elimination of the indigenous character of the colonized
land. This manifests in the establishment and promotion of colonies, namely, settlements of foreign
people implanted among the indigenous population with the aim of subjugating and dispossessing
the natives and ‘permanently securing hold’ over specific areas. The violation of the peoples’ right
to self-determination is inherent to settler-colonialism.”).
1104 Israel, Basic Law: Israel—the Nation-State of the Jewish People (19 July 2018), available at
https://tinyurl.com/5n9b4nhs, art. 1; Adalah Legal Center, “Israel's Jewish Nation-State Law” (20
Dec. 2020), available at https://tinyurl.com/mrxbp95z; Harvard Law School International Human
Rights Clinic and Addameer, Apartheid in the Occupied West Bank: A Legal Analysis of Israel’s
Actions (28 Feb. 2022) (hereinafter, “HLS IHRC and Addameer Report”), available at
https://tinyurl.com/2bkmfwf7, p. 21.
1105 Adalah, Adalah’s Analysis of the New Israeli Government’s Guiding Principles and Coalition
Agreements and their Implications on Palestinians’ Rights (10 Jan. 2023), available at
https://tinyurl.com/2twea6zv, p. 1; C. Keller-Lynn & M. Bachner, “Judicial reform, boosting Jewish
278
report, “[i]n the worldview of [Israeli Prime Minister Benjamin] Netanyahu … only
Jews have historic rights over ‘Judea and Samaria’”.1106
4.23 The principal engine driving this “de-Palestinianization” policy—that is, a
policy to “diminish the presence, identity and resilience of Palestinians in the
occupied Palestinian territory”1107—has been Israel’s settlement activities, as
described more fully in Chapter 2, Section I. Since the early years of occupation,
Israel has established, encouraged, maintained and expanded settlement activities
throughout the West Bank, including in East Jerusalem.
4.24 In 2013, the UN Fact-Finding Mission on Israeli Settlements in the OPT
found that
the right to self-determination of the Palestinian people, including
the right to determine how to implement self-determination, the
right to have a demographic and territorial presence in the Occupied
Palestinian Territory and the right to permanent sovereignty over
natural resources, is clearly being violated by Israel through the
existence and ongoing expansion of the settlements.1108
The Mission further affirmed that
[t]he establishment of the settlements in the West Bank, including
East Jerusalem … is a mesh of construction and infrastructure
identity: The new coalition's policy guidelines,” Times of Israel (28 Dec. 2022), available at
https://tinyurl.com/yvzn42b2.
1106 Prof. Avi Shlaim, The Diplomacy of the Israeli-Palestinian Conflict (1967-2023) (20 July
2023), p. 43. QWS, Vol. II, Annex 2.
1107 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 67.
1108 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 38.
279
leading to a creeping annexation that prevents the establishment of
a contiguous and viable Palestinian State and undermines the right
of the Palestinian people to self-determination.1109
4.25 The Wall has further served its intended purpose of consolidating the
majority of these settlements. As the Court observed in the Wall Advisory Opinion,
the construction of the barrier wall has compelled the departure of Palestinians
from certain areas, altering the demographic composition of the OPT and “severely
imped[ing] the exercise by the Palestinian people of its right to selfdetermination”.
1110
4.26 As discussed in Chapter 2, Section II, even as it promotes the settlement of
Jewish Israelis in the OPT, Israel arbitrarily denies building permits and land
registration in the OPT; demolishes buildings owned by Palestinians, including
schools; and evicts Palestinians from their homes and land. Moreover, Israel
prevents Palestinians residing outside of the OPT (many of whom were displaced
during the Nakba or are descendants of those individuals1111) from returning to,
and residing in, the OPT. These practices have resulted in the displacement of
hundreds of thousands of Palestinians from and within the OPT over the years.1112
4.27 Furthermore, as discussed in Chapter 2, Section IV, Israel has
institutionalized a system of oppression over Palestinians, normalizing violence
1109 Ibid., para. 101.
1110 Wall Advisory Opinion, para. 122. See also ibid., para. 133.
1111 See Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023), pp. 31-
36. QWS, Vol. II, Annex 1.
1112 See supra paras. CHAPTER 1.I. A.1(a)i.2.52-CHAPTER 1.I. A.1(a)i.2.62, CHAPTER 1.I.
A.1(a)i.2.157; UNGA, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept.
2022), para. 86.
280
and abuses against them.1113 Under the false pretext of national security, Israel has
conducted countless attacks and raids on the Palestinian population, including in
refugee camps and places of worship.1114
4.28 The result of all these policies has been the forcible displacement of
hundreds of thousands of Palestinians.1115 By intentionally transferring its
population to the OPT and causing the displacement of Palestinians within the
OPT, Israel indefinitely deprives the Palestinian people of a permanent
population.1116
C. ISRAEL’S OCCUPATION INDEFINITELY DEPRIVES THE PALESTINIAN PEOPLE
OF A TERRITORY ON WHICH TO REALIZE THEIR RIGHT TO SELF-DETERMINATION
4.29 The land is an essential component of Palestinian identity1117 and the
preservation of the territorial integrity of Palestine is an integral part of the people’s
1113 See OHCHR, Press Release: Israel/Palestine: UN experts condemn renewed violence and
Israeli killings of Palestinians in occupied West Bank (27 Jan. 2023), available at
https://tinyurl.com/52z2b27m.
1114 See supra Chapter 2, §§ IV, VI(B).
1115 See supra Chapter 2, § II; supra Chapter 3, §§ III(A)(4), IV(B); UNGA, Report of the
Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022), para. 86.
1116 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 35
(“Altogether, the imposition of settlers, settlements and settlement infrastructure in the topography
and space of the Palestinians has served to prevent the realization of the Palestinians’ right to selfdetermination,
violating a number of peremptory norms of international law, absolutely prohibited
under international law.”).
1117 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 39.
281
right to self-determination.1118 As the Court recently recognized in a related
context, “any detachment … of part of a non-self-governing territory, unless based
on the freely expressed and genuine will of the people of the territory concerned,
is contrary to the right to self-determination”.1119 This principle was also
consecrated in paragraph 6 of General Assembly Resolution 1514 (XV), which
provides that “[a]ny attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with the purposes and
principles of the Charter of the United Nations”.1120
4.30 In addition to illegally annexing East Jerusalem and Area C of the West
Bank,1121 Israel’s policies and practices in the OPT have otherwise deprived the
Palestinian people of a significant portion of their Territory over which they may
seek to realize their right to self-determination. These include:
• Establishing and facilitating Jewish Israeli settlements in the OPT,
including by seizing land used and/or owned by Palestinians in East
Jerusalem and Area C of the West Bank, building infrastructure serving
those settlements, and constructing the Wall, which effectively
1118 Chagos Advisory Opinion, para. 160 (“The Court considers that the peoples of non-selfgoverning
territories are entitled to exercise their right to self-determination in relation to their
territory as a whole, the integrity of which must be respected by the administering Power.”).
1119 Ibid.
1120 Colonial Declaration (14 Dec. 1960), para. 6. The nature and scope of the right to selfdetermination
of peoples, including respect for “the national unity and territorial integrity of a State
or country”, were reiterated in subsequent resolutions, including the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations of 1970. See UNGA Res. 2625 (XXV), Preamble. See also
UNGA, Resolution 2325 (XXII), Question of South West Africa, UN Doc. A/RES/2325(XXII) (16
Dec. 1967), paras. 4, 6; UNGA, Resolution 74/139, The right of the Palestinian people to selfdetermination,
UN Doc. A/RES/74/139 (18 Dec. 2019) (Dossier No. 378), Preamble (“Stressing
also the need for respect for and preservation of the territorial unity, contiguity and integrity of all
of the Occupied Palestinian Territory, including East Jerusalem, and recalling in this regard its
resolution 58/292 of 6 May 2004”) (emphasis added).
1121 See supra Chapter 3, § I.
282
incorporates territory in the West Bank where settlements are located
into Israel’s pre-1967 borders, as described in Chapter 2, Section I;
• Physically fragmenting the OPT through the imposition of restrictions
of movement within the West Bank (including East Jerusalem), as
detailed in Chapter 2, Section III(A);1122
• Disrupting the free movement of Palestinians between Gaza and the
West Bank, despite previously recognizing them as a single territorial
unit and undertaking to permit regular “safe passage” between them,1123
as detailed in Chapter 2, Section III(B); and
• Placing restrictions on whether and where Palestinians may reside in
the OPT and causing the internal displacement of Palestinians within
the OPT, as detailed in Chapter 2, Section II.
4.31 These measures have also deprived the OPT of any semblance of a
contiguous character. As the representative of Palestine told the Security Council
in 2011: “All these measures are severing the northern and southern parts of the
West Bank, encircling occupied East Jerusalem and separating it from its natural
Palestinian environs, and totally undermining the contiguity and viability of our
State.”1124
4.32 By intentionally engaging in policies that fragment Palestinian territory and
dispossess Palestinians thereof, Israel indefinitely deprives the Palestinian people
of a territory on which they realize their right to self-determination.
1122 See supra Chapter 2, §§ I and III.
1123 See Oslo II, art. XI(1). Indeed, Israel has made specific undertakings to permit regular “safe
passage” between the West Bank and Gaza. Protocol Concerning Safe Passage; Agreed Principles
for Rafah Crossing.
1124 UNSC, Overview of 6636th meeting: The situation in the Middle East, including the Palestinian
question, UN Doc. S/PV.6636 (24 Oct. 2011), p. 7.
283
D. ISRAEL’S OCCUPATION INDEFINITELY DEPRIVES THE PALESTINIAN PEOPLE
OF THE ABILITY TO EXERCISE THEIR COLLECTIVE WILL AND DETERMINE THEIR
INTERNAL POLITICAL STATUS
4.33 Israel’s prolonged occupation also deprives the Palestinian people of the
right to exercise their collective will and determine their internal political status,
thereby indefinitely violating the right to self-determination.
4.34 A people’s right and capacity to govern themselves is expressly provided
for in common Article 1 of the ICCPR and the ICESCR, which enshrine peoples’
right to “freely determine their political status”.1125
4.35 Because of Israel’s military occupation and its associated regime, the
Palestinian people have not been allowed to form a government that exercises
meaningful control over the OPT. In fact, the Palestine National Council has never
been in a position to exercise governmental powers within the OPT, even though it
enjoys the support of the overwhelming majority of the Palestinian residents of the
OPT.1126 Nor does the PLO function as a government in the OPT, despite
exercising general influence over it and serving as the representative of the
Palestinian people on the international scene.1127 In this respect, the Court has
recognized that while a number of agreements between Israel and the PLO have
resulted in transferring to the Palestinian authorities certain powers and
responsibilities, such transfers have “remained partial and limited”.1128
1125 See ICCPR, art. 1; ICESCR, art. 1.
1126 J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW (2nd Ed., OUP, 2007), p. 437.
1127 Ibid.
1128 Wall Advisory Opinion, para. 77.
284
4.36 Israel actively crushes any aspiration by the Palestinian people to express
their political will, determine their internal political status, and form a government
that can exercise genuine control over the Palestinian territory. It does so by, inter
alia:
• Banning or suppressing symbols and manifestations of Palestinian
culture, history and identity, as discussed in Chapter 2, Section VI(C);
• Suppressing the Palestinian people’s capacity to exercise their civil and
political rights, including by criminalizing peaceful protest against the
occupation (as discussed in Chapter 2, Section V(C)), targeting and
obstructing the work of journalists seeking to document or publicize the
occupation’s brutality (as discussed in Chapter 2, Section VII(A)), and
repressing the efforts of Palestinian human rights activists and NGOs
(as discussed in Chapter 2, Section VII(B)); and
• Systematically harassing Palestinian political leaders, including elected
representatives, ministers and mayors, as discussed in Chapter 2,
Section VII.
4.37 Moreover, Israel’s restrictions on the rights to freedom of movement and to
choose one’s own residence, detailed in Chapter 2, Sections II and III, isolate
Palestinians into enclaves and limit their ability to coalesce into a “cohesive
national group”.1129
4.38 Together, all these tools of disenfranchisement have hampered the organic
formation and functioning of a cohesive Palestinian political leadership, the
formation of Palestinian political thinking, and ultimately, effective political
1129 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 16.
285
resistance against foreign subjugation, all of which constitute the beating heart of
the right to self-determination.1130 Indeed, it has been recognized that the
[E]xercise of the right to self-determination required the democratic
process, which, in turn, was inseparable from the full exercise of
such human rights as the right of freedom of thought, conscience
and religion; the right of freedom of expression; the right of peaceful
assembly and association; the right to take part in cultural life; the
right to liberty and security of person; and the right to move freely
in one’s country and to leave any country, including one’s own, as
well as to return to one’s country.1131
4.39 In sum, Israel’s policies deprive the Palestinian people of the right to
exercise their collective will and political rights, which indefinitely violates their
right to self-determination.
E. ISRAEL’S OCCUPATION INDEFINITELY DEPRIVES THE PALESTINIAN PEOPLE
OF THEIR RIGHT TO PURSUE FREELY THEIR ECONOMIC, SOCIAL AND CULTURAL
DEVELOPMENT
4.40 Common Article 1 of the ICCPR and the ICESCR provides that by virtue
of the right of self-determination, all peoples may “freely dispose of their natural
wealth and resources”1132 and that “[i]n no case may a people be deprived of its
own means of subsistence”.1133 It also requires that peoples be able to “freely
1130 Ibid., para. 56. Special Rapporteur Albanese observed that “[d]eporting elected leaders,
preventing Palestinians from voting and interfering with Palestinian politics, have inhibited the
independent formation of a Palestinian leadership and political will that could challenge Israeli
colonial interests”. Ibid., para. 59.
1131 UNGA, Summary record of the 7th meeting of the 3rd Committee (13 Oct. 1988), UN Doc.
A/C.3/43/SR.7, Statement of German Delegate, paras. 76-77. See also G. Marston (ed.), UNITED
KINGDOM MATERIALS ON INTERNATIONAL LAW (1984), p. 431.
1132 ICCPR, arts. 1(1) and 1(2).
1133 Ibid., art. 1(2).
286
pursue their economic, social and cultural development”.1134 Israel’s policies
deprive the Palestinian people of their right to pursue freely their economic, social
and cultural development. Here too the result is the indefinite violation of the
Palestinian people’s right to self-determination, rendering the occupation illegal.
4.41 Israel impedes the Palestinian people from pursuing their economic
development in three principal ways.
4.42 First, Israel deprives the Palestinian people of access to and enjoyment of
the OPT’s resources, the exclusive control over which is integral to the right to selfdetermination.
1135 In particular, it:
• Controls the water, hydrocarbon and mineral resources of the West
Bank and uses them for the benefit of Israeli settlers and companies, as
described in Chapter 2, Section VIII;
• Exploits the offshore gas reserves of Gaza, as described in Chapter 2,
Section VIII;
• Restricts Palestinians’ ability to use the land of the OPT, making much
of it unavailable for Palestinians to use, as described in Chapter 2,
Section II(C); and
• Restricts Palestinians’ access to agricultural and grazing land
throughout the OPT, and to fishing grounds off Gaza, as described in
Chapter 2, Section III.
4.43 Second, Israel deprives Palestinians of means of subsistence. Most starkly,
the restrictions on access to land and fishing grounds have left Palestinian
communities that were “historically self-sufficient through agriculture, livestock
1134 Ibid., art. 1(1).
1135 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), paras. 16(b), 47.
287
and fishing (in Gaza), with income generated from the sale of their products …
trapped in a vicious cycle of dependency on both [the] Israeli economy and
international aid”.1136 As former Israeli Arab Member of the Knesset Haneen Zoabi
explains, “it is virtually impossible for Palestinians to build a house, rent an
agricultural field or set up a business”.1137 In addition, the restrictions of movement
within the West Bank, described in Chapter 2, Section III(A), impede Palestinians’
ability to access their places of work, while the blockade of Gaza has made the
situation of the Palestinians living there beyond dire.1138
4.44 Third, as explained in Chapter 2, Section VIII, Israel takes measures that
impede the normal functioning of the Palestinian economy and systematically
deprives the Palestinian Authority of the ability to adopt and implement policies to
promote economic development in the OPT. In this regard, UNCTAD explains that
the Palestinian population is “deprived of resources, deprived of the ability to gain
1136 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 48 (citing
B’Tselem, Expel and exploit: the Israeli practice of taking over rural Palestinian land (2016), note
89).
1137 Why did MK Haneen Al Zoabi challenge the State of Israel?,” DW (8 Nov. 2014), available at
https://tinyurl.com/sxaaxwdx ( ” بات من غیر الممكن تقریبا للفلسطینیین بناء منزل أو استئجار حقل زراعي أو إنشاء
مشروع تجاري.“).
1138 Ibid., para. 50 (“In 2021 the unemployment rate in Gaza rose above 50 per cent, and 80 per cent
of the population was dependent on aid. Repeated large-scale Israeli military offensives, coupled
with Israeli-imposed electricity shortages, have compounded the difficulties faced by the
Palestinian people in Gaza, for whom a dignified life is rendered unattainable.”). See also World
Bank, Assistance Strategy for the West Bank and Gaza for the Period FY22-25 (156451-GZ) (2021),
available at https://tinyurl.com/v28thd4h, p. 6; World Food Programme, “Where We Work:
Palestine,” available at https://tinyurl.com/3ms647tm (“The humanitarian conditions in Gaza, and
the collapse of all productive sectors, basic social services and infrastructures is alarming. Poverty
and food insecurity in the Strip affect 59.4 percent and 63 percent of the population respectively …
The continuous large-scale security, political and economic unrest in the West Bank and the 15-
year sea, land and air blockade on the Gaza Strip have resulted in economic stagnation, loss of land
and restricted trade and access to resources, along with high unemployment and poverty rates.”).
288
from domestic economic activity, deprived of trade with outside partners and
deprived of the ability to promote future economic development”.1139
4.45 As the OPT Special Rapporteur Francesca Albanese has affirmed, the “dedevelopment”
policy that Israel has imposed on the OPT deprives the Palestinian
people of the means needed to develop an independent economy and a viable State
and “is the antithesis of the self-determination that the United Nations embraced in
the rejection of colonialism”.1140
4.46 Israel also restricts the ability of Palestinians to pursue their social and
cultural development. As explained more fulsomely in Chapter 2, Section VI, Israel
has sought to erase and supplant Palestinian cultural and religious identity in the
OPT. According to the OPT Special Rapporteur Francesca Albanese, “[a]ttacks on
cultural objects of significance to eliminate all traces and expressions of Palestinian
existence, and the incorporation of a revisionist view of history to assert (false)
claims of sovereignty in the occupied Palestinian territory, demonstrate the
occupier’s intention to permanently strip the land of its indigenous identity”.1141
4.47 Israel’s prolonged occupation thus deprives the Palestinian people of their
right to freely pursue their economic, social and cultural development, and
indefinitely violates their right to self-determination.
1139 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: the
Unrealized Oil and Natural Gas Potential, UN Doc. UNCTAD/GDS/APP/2019/1 (2019), p. 3.
1140 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 52 (citing S.
Roy, “De-development revisited: Palestinian economy and society since Oslo,” 28(3) JOURNAL OF
PALESTINE STUDIES 64 (1999), pp. 64-82).
1141 Ibid., para. 55.
289
***
4.48 The right to self-determination is a peremptory norm of international law
from which no derogation is permitted. Israel’s prolonged occupation nevertheless
fundamentally and indefinitely violates the right of the Palestinian people to selfdetermination
by depriving them of a permanent population; of a territory; of the
ability to exercise their collective will and determine their internal political status;
and of their right to freely pursue their economic, social and cultural development.
As a result, Israel’s occupation is illegal as a whole.
II. Israel’s Occupation of the OPT Constitutes a Regime of Apartheid and
Is Therefore Illegal as a Whole
4.49 Israel’s occupation of the Palestinian Territories amounts to a regime of
apartheid. As a jus cogens norm, apartheid cannot be justified under any
circumstances, including armed conflict or occupation. This Section first
establishes that apartheid is prohibited under general international law (Section A),
and then explains that Israel’s occupation—by virtue of its purpose and associated
policies and practices—can only be viewed as an institutionalized regime of
apartheid (Section B). As a consequence, the occupation as a whole is illegal and
its ongoing maintenance entails a serious breach of a peremptory norm (Section
C).
A. APARTHEID IS PROHIBITED UNDER INTERNATIONAL LAW
4.50 The prohibition of apartheid is binding upon Israel and applicable within
the OPT (Section 1). In addressing this issue, Qatar respectfully submits that the
Court should apply the widely accepted definition of apartheid under conventional
and customary international law (Section 2).
290
1. The Prohibition of Apartheid Is Binding upon Israel and Applicable
Within the OPT
4.51 The prohibition of apartheid is reflected in numerous sources of
international law. As early as 1965, the CERD, to which both Israel and Palestine
are parties, codified the prohibition of apartheid in its Article 3:
States Parties particularly condemn racial segregation and apartheid
and undertake to prevent, prohibit and eradicate all practices of this
nature in territories under their jurisdiction.1142
4.52 Expressly building on Article 3 of the CERD,1143 as well as the Universal
Declaration of Human Rights,1144 the International Convention on the Suppression
of the Crime of Apartheid (the “Apartheid Convention”) was adopted in 1973. It
provides “that apartheid is a crime against humanity” that “violat[es] the principles
of international law, in particular the purposes and principles of the Charter of the
United Nations”.1145
4.53 Although Israel is not a party to it, the Apartheid Convention merely
codified an already existing customary international law prohibition of apartheid.
As stated in its Preamble, at the time the Apartheid Convention was adopted 50
1142 CERD, art. 3. In addition, the Preamble to the CERD makes clear that States were “[a]larmed
by manifestations of racial discrimination still in evidence in some areas of the world and by
governmental policies based on racial superiority or hatred, such as policies of apartheid,
segregation or separation”.
1143 See International Convention on the Suppression and Punishment of the Crime of Apartheid (18
July 1976), 1015 U.N.T.S. 243 (hereinafter, “Apartheid Convention”), Preamble (“Observing that,
in accordance with the International Convention on the Elimination of All Forms of Racial
Discrimination, States particularly condemn racial segregation and apartheid and undertake to
prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”).
1144 See ibid., Preamble (“Considering the Universal Declaration of Human Rights, which states that
all human beings are born free and equal in dignity and rights and that everyone is entitled to all the
rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour
or national origin”).
1145 Ibid., art. I(1).
291
years ago, “the General Assembly of the United Nations ha[d] adopted a number
of resolutions in which the policies and practices of apartheid are condemned as a
crime against humanity”, and “the Security Council ha[d] emphasized that
apartheid and its continued intensification and expansion seriously disturb and
threaten international peace and security”.1146
4.54 Indeed, both before and after the adoption of the Apartheid Convention, the
Security Council1147 and the General Assembly1148 have repeatedly and forcefully
denounced apartheid as prohibited under international law. That is not surprising,
given that the prohibition of apartheid is rooted in the aversion to racial
discrimination under international law enshrined in Articles 1(3) and 55 of the UN
Charter.1149 This Court itself has held that the policy of apartheid—as extended to
1146 Ibid., Preamble.
1147 See, e.g., UNSC, Resolution 473, Calling upon South Africa to take measures to eliminate the
policy of apartheid and grant to all South African citizens equal rights, UN Doc. S/RES/473(1980)
(13 June 1980); UNSC, Resolution 418, On establishment of an arms embargo against South Africa,
UN Doc. S/RES/418(1977) (4 Nov. 1977); UNSC, Resolution 554 (1984), On the “new
constitution” of South Africa, UN Doc. S/RES/554(1984) (17 Aug. 1984); UNSC, On sanctions
against South Africa, UN Doc.
S/RES/569(1985) (26 July 1985).
1148 See, e.g., Colonial Declaration (14 Dec. 1960), para. 1; UNGA, Resolution 2202 (XXI), The
policies of apartheid of the Government of the Republic of South Africa, UN Doc.
A/RES/2202(XXI) (16 Dec. 1966), Part A, para. 1; UNGA, Resolution 3411 (XXX), Policies of
apartheid of the Government of South Africa - Special responsibility of the United Nations and the
international community towards the oppressed people of South Africa, UN Doc
A/RES/3411(XXX) (28 Nov. 1975), Part C, para. 1; UNGA, Resolution 32/105, Policies of
apartheid of the Government of South Africa, UN Doc. A/RES/32/105 (14 Dec. 1977), Part J, paras.
2–4; UNGA, Resolution 31/6, Policies of apartheid of the Government of South Africa, UN Doc.
A/RES/31/6 (26 Oct. 1976), Part A, para. 1; UNGA, Resolution 34/93, Declaration on South Africa,
UN Doc. A/RES/34/93 (12 Dec. 1979), Part O, para. 1; UNGA, Resolution 39/72, Policies of
apartheid of the Government of South Africa, UN Doc. A/RES/39/72 (13 Dec. 1984) (hereinafter,
“UNGA Res. 39/72”), Part A; ibid., Part G, para. 1. See also UN, Final act of the International
Conference on Human Rights: Teheran, UN Doc. A/CONF.32/41 (22 Apr. – 13 May 1968), Chapter
II: Proclamation of Teheran (hereinafter, “Proclamation of Teheran (1968)”), para. 7.
1149 UN Charter, art. 1(3), which provides that one of the fundamental purposes of the United
Nations is “[t]o achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex, language, or
religion”. Ibid., art. 55(c), which provides: “With a view to the creation of conditions of stability
292
Namibia by South Africa—constituted a denial of fundamental human rights and a
“flagrant violation of the purposes and principles of the Charter”.1150
4.55 Over the past half century, numerous other treaties have been adopted
enshrining or otherwise recognizing the prohibition of apartheid, including, inter
alia,1151 the Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity,1152 the International Convention against
Apartheid in Sport,1153 Additional Protocol I to the Geneva Conventions,1154 and
the Rome Statute.1155 The fact that nearly every State has adhered to at least one of
the aforementioned treaties indicates that, even if the prohibition of apartheid did
and well-being which are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples, the United Nations shall
promote: … universal respect for, and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion”.
1150 See Namibia Advisory Opinion, paras. 129-131 (“It is undisputed … that the official
governmental policy [of apartheid] pursued by South Africa in Namibia is to achieve a complete
physical separation of races and ethnic groups in separate areas within the Territory. The application
of this policy has required, as has been conceded by South Africa, restrictive measures of control
officially adopted and enforced in the Territory by the coercive power of the former Mandatory.
These measures establish limitations, exclusions, or restrictions for the members of the indigenous
population groups in respect of their participation in certain types of activities, fields of study or of
training, labour or employment and also submit them to restrictions or exclusions of residence and
movement in large parts of the Territory … To establish instead, and to enforce, distinctions,
exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or
national or ethnic origin which constitute a denial of fundamental human rights is a flagrant
violation of the purposes and principles of the Charter”.)
1151 See, e.g., Convention on the Elimination of Discrimination against Women (18 Dec. 1979) 1249
U.N.T.S. 13 (hereinafter, “CEDAW”), Preamble (“Emphasizing that the eradication of apartheid
… is essential to the full enjoyment of the rights of men and women”).
1152 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity (26 Nov. 1968), 754 U.N.T.S. 73, art. 1.
1153 International Convention against Apartheid in Sports (10 Dec. 1985), 1500 U.N.T.S. 161
(hereinafter, “International Convention against Apartheid in Sports”), Preamble, arts. 1-2.
1154 Additional Protocol I, art. 85(4)(c).
1155 Rome Statute, arts. 7(1)(j), 7(2)(h).
293
not already constitute a norm of customary international law when the Apartheid
Convention was adopted (quod non), it has since crystalized into one.1156
4.56 Not only is the customary status of the prohibition of apartheid beyond
doubt, but also there is, in the words of the ILC, “widespread agreement” that the
prohibition of apartheid constitutes a peremptory norm of international law (jus
cogens).1157 This peremptory status was already subject to “general agreement”
among States at the time of the adoption of the Vienna Convention on the Law of
Treaties in 1969.1158 Since then it has become one of the “most cited norms of jus
cogens”.1159 This is only logical given that apartheid constitutes one of the most
severe manifestations of racial discrimination, the prohibition of which also
constitutes a peremptory norm.1160
1156 See ILC, Report of the International Law Commission on the work of its Seventieth Session (30
April–1 June and 2 July–10 August 2018)), UN Doc. A/73/10, p. 143-144 (“The number of parties
to a treaty may be an important factor in determining whether particular rules set forth therein reflect
customary international law; treaties that have obtained near-universal acceptance may be seen as
particularly indicative in this respect.”). There are only eleven States that have not ratified any of
these treaties. See, e.g., United Nations Treaty Collection, “Status of Treaties: Chapter IV- Human
Rights” (last accessed: 17 July 2023), available at https://tinyurl.com/yun6j4ca.
1157 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (2001) (Vol. II, Pt. 2),
Article 40 Commentary, para. 4. See also ILC, Peremptory norms of general international law (jus
cogens): Texts of the draft conclusions and Annex adopted by the Drafting Committee on second
reading, UN Doc. A/CN.4/L.967 (11 May 2022), Conclusion 23 (Annex (e)).
1158 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (2001) (Vol. II, Pt. 2),
Article 40 Commentary, para. 4.
1159 ILC, Fourth report on peremptory norms of general international law (jus cogens) by Special
Rapporteur D. Tladi, UN Doc. A/CN.4/727 (31 Jan. 2019), para. 101. In his discussion of the
peremptory status of the prohibition of apartheid, the Special Rapporteur elaborates on numerous
examples of widespread support among States, courts and tribunals, and scholars. Ibid., paras. 91-
101.
1160 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (2001) (Vol. II, Pt. 2),
Article 26 Commentary, para. 5. See also Barcelona Traction, Light and Power Company, Limited,
294
4.57 Israel, like all States, is therefore prohibited from engaging in apartheid.
This prohibition, moreover, extends to the OPT for at least four reasons. First, the
peremptory character of the norm means that no circumstances can be invoked to
derogate from the prohibition of apartheid, which applies without territorial
limitations. Second, under the CERD, Israel is obligated to “prevent, prohibit and
eradicate” apartheid “in territories under [its] jurisdiction”,1161 which include the
OPT.1162 Third, by virtue of the State of Palestine’s accession to the Rome Statute,
any individual, regardless of nationality or official capacity, incurs individual
criminal responsibility for the crime against humanity of apartheid if carried out in
the OPT.1163 Fourth, this Court condemned South Africa’s extension of its
Judgment, I.C.J. Reports 1970, p. 3, para. 34 (recognizing the erga omnes character of the
prohibition of racial discrimination).
1161 CERD, art. 3.
1162 As explained by Patrick Thornberry, the leading commentator on the CERD: “‘territories under
their jurisdiction’ is less ostensibly restrictive than the ICCPR’s ‘within its territory and subject to
its jurisdiction’. Accordingly, practice under Article 3 merges into the broader CERD archive of
applying the Convention extraterritorially, particularly in cases of occupation or control of territory,
the ‘spatial’ extension of the Convention. The Committee’s 2012 recommendations to Israel vis-àvis
activities in ‘[t]he Occupied Palestinian Territory, including East Jerusalem, and the Occupied
Golan’ furnishes a clear example of the extension of Article 3 to territories under the jurisdiction of
a State party but beyond its internationally recognized borders”. P. Thornberry, THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION: A
COMMENTARY (OUP, 2016), p. 259. See also supra paras. 3.25-3.28.
1163 The scope of individual criminal responsibility under the Rome Statute is coextensive with the
jurisdiction of the International Criminal Court (“ICC”). See Rome Statute, art. 25(2) (“A person
who commits a crime within the jurisdiction of the Court shall be individually responsible and liable
for punishment in accordance with this Statute.”). The ICC’s personal jurisdiction extends to the
author of a crime, regardless of nationality, when the conduct in question occurred within the
territory of a State Party to the Rome Statute. See Rome Statute, art. 12(2)(a). The State of Palestine
is a party to the Rome Statute and “the Court’s territorial jurisdiction in the Situation in Palestine
extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including
East Jerusalem”. See International Criminal Court, Pre-Trial Chamber I, Decision on the
Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in
Palestine (5 Feb. 2021), ICC-01/18, para. 118. Official capacity does not preclude international
criminal responsibility under the Rome statute. See Rome Statute, art. 27 (“This Statute shall apply
equally to all persons without any distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from criminal responsibility
under this Statute”).
295
apartheid policy into Namibia under the Mandate system as a “flagrant violation of
the purposes and principles of the Charter”.1164 The same applies mutatis mutandis
to Israel’s conduct in the OPT.
2. The Applicable Definition of Apartheid
4.58 In light of the multiplicity of its sources, the precise contours of the
prohibition of apartheid depend on the context of its application. As noted above,
apartheid constitutes a crime against humanity in international criminal law,1165 a
grave breach of international humanitarian law,1166 and a prohibited practice under
international human rights law.1167 While these mutually reinforcing norms leave
little doubt as to the comprehensive and unconditional nature of the prohibition of
apartheid, they do raise questions as to the precise definition of the norm to be
applied by the Court in this context.
4.59 Article 3 of the CERD, which is the oldest conventional source for the
prohibition of apartheid, does not define the term.1168 A definition is provided,
however, in three relevant instruments adopted after the CERD that provide
1164 See Namibia Advisory Opinion, para. 131.
1165 Rome Statute, art. 7(1)(j). See also ILC, Draft Articles on Prevention and Punishment of Crimes
against Humanity, with commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION
2019 (Vol. II, Pt. 2), art. 2(1)(j).
1166 Additional Protocol I, art. 85(4)(c).
1167 CERD, art. 3.
1168 Nor does Article 85(4)(c) of Additional Protocol I to the Geneva Conventions. See Additional
Protocol I, art. 85(4)(c) (“In addition to the grave breaches defined in the preceding paragraphs and
in the Conventions, the following shall be regarded as grave breaches of this Protocol, when
committed wilfully and in violation of the Conventions or the Protocol: … practices of ‘apartheid’
and other inhuman and degrading practices involving outrages upon personal dignity, based on
racial discrimination”).
296
relevant context1169 for elucidating the meaning of the term both under the CERD
and customary international law:
• The Apartheid Convention, adopted in 1977, defines the “crime of
apartheid” to “include similar policies and practices of racial
segregation and discrimination as practised in southern Africa” and to
apply to various listed “inhuman acts committed for the purpose of
establishing and maintaining domination by one racial group of persons
over any other racial group of persons and systematically oppressing
them”;1170
• The International Convention against Apartheid in Sports, adopted in
1985, provides that “[t]he expression ‘apartheid’ shall mean a system
of institutionalized racial segregation and discrimination for the purpose
of establishing and maintaining domination by one racial group of
persons over another racial group of persons and systematically
oppressing them”;1171
• The Rome Statute, adopted in 1998, provides that “‘the crime of
apartheid’ means inhumane acts of a character similar to those referred
to in paragraph 1 [i.e., other crimes against humanity], committed in the
context of an institutionalized regime of systematic oppression and
domination by one racial group over any other racial group or groups
and committed with the intention of maintaining that regime”.1172
4.60 In distilling from the above a definition of apartheid to be applied by the
Court, at least five considerations are relevant:
1169 See, e.g., J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), p. 880.
1170 Apartheid Convention, art. II.
1171 International Convention against Apartheid in Sports, art. 1(a).
1172 Rome Statute, art. 7(2)(h). See also ILC, Draft Articles on Prevention and Punishment of Crimes
against Humanity, with commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION
2019 (Vol. II, Pt. 2), art. 2(2)(h).
297
4.61 First, while the definitions are not identical in their wording, they all
underscore the same fundamental features of apartheid. As Professors Dugard and
Reynolds explain, understood in the broader context of the history of apartheid,
“[t]he essence of the definition of apartheid is thus the systematic, institutionalized,
and oppressive character of the discrimination involved, and the purpose of
domination that is entailed”.1173 Although apartheid was first carried out in
southern Africa before 1994, there is widespread consensus that its legal
application is not limited to that context.1174 Rather than geography, “[i]t is this
institutionalized element, involving a state-sanctioned regime of law, policy, and
institutions, that distinguishes the practice of apartheid from other forms of
prohibited discrimination”.1175
4.62 Second, although the three definitions of apartheid vary somewhat in their
approach to the underlying acts constituting apartheid, the texts are best read as
complementary.
1173 J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), p. 881.
1174 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 29 (“When the Rome Statute was drafted and adopted 25 years later, the apartheid era in
southern Africa had already ended, and the purpose of the Rome Statute was to provide a forwardlooking
definition with universal application. In particular, it made no reference to South Africa or
southern Africa. Given this approach, there is no reasonable basis to think that the existence of
apartheid is limited either in time or in geography.”). The travaux of the Apartheid Convention
further confirm this. See J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied
Palestinian Territory,” 24 (3) EJIL 867 (2013), pp. 884-885 (citing, inter alia, the statement of the
delegate of Cyprus during the drafting process: “When drafting and adopting such an international
convention, it must be remembered that it would become part of the body of international law and
might last beyond the time when apartheid was being practiced in South Africa.”). Contemporary
South African legal scholarship also confirms this. See, e.g., J. Dugard et al., DUGARD’S
INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE (5th Ed., Juta, 2018), pp. 229-230; M. du
Plessis, “International Criminal Law: The Crime of Apartheid Revisited Recent Cases,” 24 SOUTH
AFRICAN JOURNAL OF CRIMINAL JUSTICE 417 (2011), p. 417.
1175 J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), p. 881.
298
4.63 The Apartheid Convention provides the most comprehensive list of
underlying acts, which include:
(a) Denial to a member or members of a racial group or groups of
the right to life and liberty of person:
(i) By murder of members of a racial group or groups;
(ii) By the infliction upon the members of a racial group or groups
of serious bodily or mental harm, by the infringement of their
freedom or dignity, or by subjecting them to torture or to cruel,
inhuman or degrading treatment or punishment;
(iii) By arbitrary arrest and illegal imprisonment of the members of
a racial group or groups;
(b) Deliberate imposition on a racial group or groups of living
conditions calculated to cause its or their physical destruction in
whole or in part;
(c) Any legislative measures and other measures calculated to
prevent a racial group or groups from participation in the political,
social, economic and cultural life of the country and the deliberate
creation of conditions preventing the full development of such a
group or groups, in particular by denying to members of a racial
group or groups basic human rights and freedoms, including the
right to work, the right to form recognized trade unions, the right to
education, the right to leave and to return to their country, the right
to a nationality, the right to freedom of movement and residence,
the right to freedom of opinion and expression, and the right to
freedom of peaceful assembly and association;
(d) Any measures including legislative measures, designed to divide
the population along racial lines by the creation of separate reserves
and ghettos for the members of a racial group or groups, the
prohibition of mixed marriages among members of various racial
groups, the expropriation of landed property belonging to a racial
group or groups or to members thereof;
299
(e) Exploitation of the labour of the members of a racial group or
groups, in particular by submitting them to forced labour;
(f) Persecution of organizations and persons, by depriving them of
fundamental rights and freedoms, because they oppose
apartheid.1176
4.64 For its part, the Rome Statute refers to “inhumane acts of a character similar
to those referred to in paragraph 1,” namely:
(a) Murder;
…
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
(f) Torture;
…
(h) Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection
with any act referred to in this paragraph or any crime within the
jurisdiction of the Court;
(i) Enforced disappearance of persons;
…
1176 Apartheid Convention, art. II.
300
(k) Other inhumane acts of a similar character intentionally causing
great suffering, or serious injury to body or to mental or physical
health.1177
4.65 As noted by the former OPT Special Rapporteur Michael Lynk, among
others,1178 “a purposive reading of the respective lists indicates that there is
considerable overlap, and the broad language used in the Rome Statute—that is,
‘other inhumane acts’—can reasonably be said to include the same prohibited
provisions that are found on the list in the [Apartheid] Convention”.1179 Indeed, by
virtue of their wording, both of these lists can be said to be non-exhaustive.1180 It
follows that “[t]hese differences between the [Apartheid Convention] and the
Rome Statute are secondary and reconcilable”.1181
4.66 Moreover, as illustrated by the absence of the requirement of specific
underlying acts in the definition contained in the Convention against Apartheid in
Sports, inhuman or inhumane acts are in many ways inevitable in the maintenance
of a “system of institutionalized racial segregation and discrimination”.1182 At the
same time, the absence of this component in the definition set forth in the
Convention against Apartheid in Sports also suggests that the identification and
1177 Rome Statute, art. 7(1).
1178 G. Mettraux, “Apartheid,” in INTERNATIONAL CRIMES: LAW AND PRACTICE: VOLUME II:
CRIMES AGAINST HUMANITY (OUP, 2020), p. 741.
1179 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 30.
1180 Article II of the Apartheid Convention makes clear, in a non-limitative fashion, that apartheid
“shall include similar policies and practices of racial segregation and discrimination as practised in
southern Africa” (emphasis added). Moreover, Article 7(2)(h) of the Rome Statute provides that the
definition of apartheid extends to “inhumane acts of a character similar” (emphasis added).
1181 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 31.
1182 International Convention against Apartheid in Sports, art. 1.
301
qualification of underlying acts of apartheid is a less rigid requirement (if it exists
at all) in the context of State responsibility than in the context of individual criminal
responsibility. The latter entails the strict application of principles such as nullum
crimen sine lege.1183
4.67 Third, and in this connection, the above definitions serve different purposes
depending on the respective instruments containing them, which must be borne in
mind when drawing conclusions about the meaning of apartheid under the CERD
and customary international law. The Apartheid Convention and the Rome Statue
are primarily concerned with individual criminal responsibility for the crime
against humanity of apartheid. However, the Court—by its very nature and in light
of the Request before it—is not called upon to establish the criminal responsibility
of individuals, but rather to ascertain “the legal status of the occupation” and “the
legal consequences that arise for all States and the United Nations from this
status”.1184 It follows that the definition of apartheid to be applied by the Court
should take inspiration from the definitions set forth in the Rome Statute and the
Apartheid Convention, but must also be adapted to apply, mutatis mutandis, in the
context of State responsibility.1185
4.68 For example, the Court need not ascertain whether apartheid has been
committed “as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack”, as required by the definition of
1183 See, e.g., Rome Statute, art. 22.
1184 Request, para. 18(b).
1185 See, e.g., J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), p. 880 (“The present study is concerned with appraising the
responsibility of the Israeli state under the norms of public international law, as opposed to the
responsibility of its individual agents under international criminal law. Thus, reliance on the
formulation of criminal statutes – as among the most elaborate sources of law on the question of
apartheid – is for the purposes of informing a comprehensive definition rather than any evaluation
of individual criminal guilt.”).
302
crimes against humanity set forth in the Rome Statute.1186 While it is certainly true
that States are prohibited from themselves engaging in the crime against humanity
of apartheid,1187 States are also prohibited from engaging in the practice of
apartheid, whether or not it also amounts to a crime against humanity,1188 and
whether or not individual criminal responsibility has been established.1189
4.69 Fourth, according to all of the aforementioned definitions, apartheid must
be perpetrated by one “racial group” over at least one other “racial group”. As has
been widely observed, the notion of “racial group” in the context of apartheid is
not limited to narrow concepts of race or colour.1190 Rather, in accordance with
1186 Rome Statute, art. 7(1). See also ILC, Draft Articles on Prevention and Punishment of Crimes
against Humanity, with commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION
2019 (Vol. II, Pt. 2), art. 2(1).
1187 See ILC, Draft Articles on Prevention and Punishment of Crimes against Humanity, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2019 (Vol. II, Pt. 2), art.
3 (“Each State has the obligation not to engage in acts that constitute crimes against humanity.”).
See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, paras.
166, 172-173.
1188 Although the definitions of apartheid contained in the Rome Statute and the Apartheid
Convention are the most prominent and frequently invoked, the definition contained in the
Convention against Apartheid in Sports makes clear that apartheid has long been understood as a
prohibited practice independent of its status as a crime against humanity. See P. Thornberry, THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION: A
COMMENTARY (OUP, 2016), p. 242. See also ILC, Fourth report on peremptory norms of general
international law (jus cogens) by Special Rapporteur D. Tladi, UN Doc. A/CN.4/727 (31 Jan.
2019), paras. 91-101.
1189 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para.
173. See also ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
with commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (2001) (Vol. II, Pt.
2), Article 58 Commentary, para. 3 (“the question of individual responsibility is in principle distinct
from the question of State responsibility”).
1190 See, e.g., J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), pp. 885-891.
303
both the CERD1191 and customary international law,1192 the term “racial” must also
be understood to encompass descent and national or ethnic origin.
4.70 In light of and subject to the above considerations, there is now consensus
among leading scholars, experts, and human rights organizations that apartheid is
defined by three core characteristics: (i) an institutionalized regime of systematic
racial oppression and discrimination, (ii) which is established with the intent to
maintain the domination of one racial group over another, and (iii) which features
inhumane (or inhuman) acts committed as an integral part of the regime.1193 When
these three features are present, the practice of apartheid exists within the meaning
of the CERD and customary international law. States are not only prohibited from
engaging in this practice, but also have positive obligations to “prevent, prohibit
and eradicate” it.1194
B. ISRAEL’S OCCUPATION CONSTITUTES A REGIME OF APARTHEID
4.71 The application of the foregoing legal standard leads to the unavoidable
conclusion that Israel’s occupation of the OPT amounts to a regime of apartheid.
What may have once been a temporary military occupation within the meaning of
that term under international law is today an institutionalized regime of systematic
racial oppression and discrimination, established with the intent to maintain the
1191 CERD, art. 1 (“the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction
or preference based on race, colour, descent, or national or ethnic origin”).
1192 See Namibia Advisory Opinion, para. 131.
1193 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 31. See also G. Mettraux, “Apartheid,” in INTERNATIONAL CRIMES: LAW AND PRACTICE:
VOLUME II: CRIMES AGAINST HUMANITY (OUP, 2020), p. 740.
1194 CERD, art. 3.
304
domination of Jewish Israelis over Palestinians, and which features inhumane acts
committed as an integral part of that regime.
4.72 Prominent voices have warned for decades that Israel’s occupation has
increasingly exhibited characteristics of apartheid and that absent Israel’s reversal
of its policies and the realization of Palestinians’ self-determination, it would
actually become a regime of apartheid. Former United States President Jimmy
Carter issued this warning, for example, in his 2006 book Palestine: Peace Not
Apartheid.1195 Similarly, in a 2007 report issued in his capacity as OPT Special
Rapporteur, Professor John Dugard opined that “Israel’s laws and practices in the
OPT certainly resemble aspects of apartheid … and probably fall within the scope
of the 1973 International Convention on the Suppression and Punishment of the
Crime of Apartheid”.1196
4.73 Since these warnings were issued, Israel’s discriminatory practices and
policies have intensified to such a degree that apartheid is no longer a specter on
the horizon, but the bleak reality of the occupation today. In 2013, Professor
Dugard revisited the tentative findings he made as Special Rapporteur in 2007 and
concluded just six years later that little doubt remained about the existence of
apartheid:
On the basis of the systemic and institutionalized nature of the racial
domination that exists, there are indeed strong grounds to conclude
that a system of apartheid has developed in the occupied Palestinian
territory. Israeli practices in the occupied territory are not only
reminiscent of – and, in some cases, worse than – apartheid as it
1195 J. Carter, PALESTINE: PEACE NOT APARTHEID (Simon & Schuster, 2006), p. 215.
1196 Human Rights Council, Report of Special Rapporteur J. Dugard on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/4/17 (29 Jan. 2007),
para. 61.
305
existed in South Africa, but are in breach of the legal prohibition of
apartheid.1197
4.74 Ten more years have passed and the situation has only become worse.
Following their visit to the OPT in June 2023, former UN Secretary-General Ban
Ki-Moon and former High Commissioner for Human Rights Mary Robinson noted
that they “heard no detailed rebuttal of the evidence of apartheid. On the contrary,
the declarations and policies of the current Israeli Government—whose Coalition
Guidelines state that ‘the Jewish people have an exclusive and inalienable right to
all parts of the Land of Israel’—clearly show an intent to pursue permanent
annexation rather than temporary occupation, based on Jewish supremacy”.1198
4.75 Even prominent former Israeli officials have recognized the reality of
apartheid. These include two former ambassadors of Israel to South Africa, who
opined in June 2021 that “[i]t is time for the world to recognise that what we saw
in South Africa decades ago is happening in the occupied Palestinian territories
too”.1199 And the former Attorney General of Israel, Michael Benyair, stated in
February 2022 that:
It is with great sadness that I must also conclude that my country
has sunk to such political and moral depths that it is now an
apartheid regime. It is time for the international community to
recognise this reality as well … It is impossible to conclude
1197 J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), p. 912 (emphasis added). See also J. Dugard, CONFRONTING
APARTHEID: A PERSONAL HISTORY OF SOUTH AFRICA, NAMIBIA AND PALESTINE (Jacanda Media,
2018), pp. 206-232.
1198 The Elders 2023 Report, p. 1.
1199 F. Ebel, “Israel-Palestine: Former Israeli ambassadors to South Africa call occupation
‘apartheid’,” Middle East Eye (8 June 2021), available at https://tinyurl.com/3mzyz9dc.
306
otherwise: the occupation is a permanent reality. This is a one state
reality, with two different peoples living with unequal rights.1200
4.76 There is also a growing chorus of human rights experts and Israeli,
Palestinian and international human rights organizations that have concluded that
Israel has implemented a regime of apartheid. Among others, the following legal
opinions and analyses have been published since 2019 alone:
• In November 2019, a coalition of eight Palestinian and international
human rights organizations submitted a detailed report to the CERD
Committee “substantiat[ing] that Israel has created and maintained an
apartheid regime over the Palestinian people as a whole, in violation of
its obligations under international law”;1201
• In July 2020, the Israeli human rights organization Yesh Din issued a
legal opinion finding that the occupation of the West Bank amounts to
an apartheid regime;1202
• In January 2021, the Israeli human rights organization B’Tselem
published a policy paper detailing its conclusion that the Israeli
government is implementing a system of apartheid;1203
1200 M. Benyair, “Former AG of Israel: With great sadness I conclude that my country is now an
apartheid regime,” The Journal (10 Feb. 2022), available at https://tinyurl.com/2r6p6wtm.
1201 Al-Haq, BADIL Resource Center for Palestinian Residency and Refugee Rights, Palestinian
Center for Human Rights, Al Mezan Centre for Human Rights, Addameer Prisoner Support and
Human Rights Association, Civic Coalition for Palestinian Rights in Jerusalem, Cairo Institute for
Human Rights Studies, and Habitat International Coalition, Joint Parallel Report to the United
Nations Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to
Nineteenth Periodic Reports (10 Nov. 2019), available at https://tinyurl.com/3vbnyj42, para. 3.
1202 Yesh Din & Adv. M. Sfard, The Israeli Occupation of the West Bank and the Crime of
Apartheid: Legal Opinion (June 2020), available at https://tinyurl.com/52ts3abj, pp. 6, 57.
1203 B’Tselem, A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid (12 Jan. 2021), available at https://tinyurl.com/4yzzwvuv.
307
• In April 2021, Human Rights Watch issued a more than 200-page report
detailing its finding that Israeli authorities have perpetrated the crime of
apartheid in the OPT;1204
• In February 2022, the Human Rights Clinic of Harvard Law School and
the Palestinian human rights organization Addameer published a legal
analysis “find[ing] that Israel’s actions in the occupied West Bank are
in breach of the prohibition of apartheid”;1205
• Also in February 2022, Amnesty International issued a nearly 300-page
report finding that “Israel’s system of institutionalized segregation and
discrimination against Palestinians, as a racial group, in all areas under
its control amounts to a system of apartheid”;1206
• In March 2022, Michael Lynk, then Special Rapporteur on the situation
of Human Rights in the Palestinian territories occupied since 1967,
issued a report in which he concluded “that the political system of
entrenched rule in the Occupied Palestinian Territory … satisfies the
prevailing evidentiary standard for the existence of apartheid”;1207 and
• In November 2022, the Palestinian human rights organization Al-Haq
published a more than 200-page report—endorsed by seven other
Palestinian NGOs—concluding that Israel is practicing apartheid as a
part of its ongoing settler colonial project.1208
4.77 In addition to the reports mentioned above, it is notable that in South Africa
itself the South African Human Sciences Research Council (“HSRC”) released a
1204 HRW 2021 Report, p. 10.
1205 HLS IHRC and Addameer Report, p. 1.
1206 Amnesty International 2022 Report, p. 267.
1207 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 52.
1208 Al-Haq, Israeli Apartheid: Tool of Zionist Settler Colonialism (29 Nov. 2022), p. 181. The other
endorsing organizations are Addameer, Al Mezan, the Palestinian Centre for Human Rights, the
Civic Coalition for Palestinian Rights in Jerusalem, the Jerusalem Legal Aid and Human Rights
Center, the Community Action Center of Al-Quds University, and the Palestinian Initiative for the
Promotion of Global Dialogue and Democracy (MIFTAH). Ibid., pp. i-iii.
308
report confirming—in 2009—that Israel is practising both colonialism and
apartheid in the OPT.1209
4.78 Although some of the aforementioned authorities have limited their
conclusions on apartheid to the OPT, Qatar underscores that, as found by Amnesty
International, “Israel has imposed a system of oppression and domination over
Palestinians wherever it exercises control over the enjoyment of their rights –
across Israel and the OPT and with regard to Palestinian refugees”.1210 There is
irrefutable evidence that Israel is carrying out the crime of apartheid not just in the
OPT but in Israel itself. Palestinian citizens of Israel are unequal, facing de jure
discrimination with regard to nationality and family unification, as well as
numerous discriminatory policies impacting their access to services and benefits,
ability to live where they choose, participate in political life, and use their own
language.1211 Since the enactment of the Nation State Law in 2018, they live in a
State where the right to self-determination is “exclusive to the Jewish People”.1212
1209 See HSRC Democracy and Governance Programme, Occupation, Colonialism, Apartheid? A
re-assessment of Israel's practices in the occupied Palestinian territories under international law
(June 2009), available at https://tinyurl.com/ywkk7hsj, pp. 15-22. The 300-page HSRC Report was
focused on the definition of Apartheid as contained in the Apartheid Convention. The Report noted
that the three pillars of apartheid in South Africa are all practised by Israel in the OPT. In South
Africa, the first pillar was to demarcate the population of South Africa into racial groups, and to
accord superior rights, privileges and services to the white racial group. The second pillar was to
segregate the population into different geographic areas, which were allocated by law to different
racial groups, and restrict passage by members of any group into the area allocated to other groups.
And the third pillar was a matrix of draconian ‘security’ laws and policies that were employed to
suppress any opposition to the regime and to reinforce the system of racial domination, by providing
for administrative detention, torture, censorship, banning, and assassination.
1210 Amnesty International 2022 Report, p. 12 (emphasis added).
1211 Ibid., pp. 82-84, 114-122, 178-180. See also Adalah, The Inequality Report: The Palestinian
Arab Minority in Israel (Mar. 2011), available at https://tinyurl.com/ynxdd7p6, pp. 7-12, pp. 16-
18, pp. 39-47, pp. 51-58; CESCR, Concluding observations on the fourth periodic report of Israel,
UN Doc. E/C.12/ISR/CO/4 (12 Nov. 2019), para. 68.
1212 Israel, Basic Law: Israel—the Nation-State of the Jewish People (19 July 2018), available at
https://tinyurl.com/5n9b4nhs, art. 1; Adalah Legal Center, “Israel's Jewish Nation-State Law” (20
Dec. 2020), available at https://tinyurl.com/5fdbf6an.
309
As explained by Ayman Odeh, a Palestinian citizen of Israel and Member of the
Knesset:
Today, I will have to tell my children, along with all the children of
Palestinian Arab towns … that the state has declared that it does not
want us here … It has passed a law of Jewish supremacy and told
us that we will always be second-class citizens.1213
4.79 While the questions before the Court do not concern Israel’s practices
within its borders, the overarching regime of discrimination against Palestinians—
wherever they may be and whatever status they hold—provides important context
for the Court’s analysis of Israel’s practices in the OPT.
1. Israel’s Occupation Constitutes an Institutionalized Regime of Racial
Oppression and Discrimination
4.80 Israel’s occupation constitutes an “institutionalized regime” in the sense
that it “involve[es] a state-sanctioned regime of law, policy, and institutions”.1214
Indeed, the occupation is carried out by a massive military apparatus with the
support of a civilian bureaucracy and institutions, which govern all aspects of life
through an intricately designed military and civil law framework.1215 It is therefore
unsurprising that the occupation—and in particular its manifestation in the West
Bank—has been recognized as a “distinct” institutionalized regime.1216
1213 I. Ben Zion, “Israeli parliament passes contentious Jewish nation Bill,” Associated Press (19
July 2018), available at https://tinyurl.com/2p98afwn.
1214 J. Dugard & J. Reynolds, “Apartheid, International Law, and the Occupied Palestinian
Territory,” 24 (3) EJIL 867 (2013), p. 881.
1215 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 41.
1216 Yesh Din & Adv. M. Sfard, The Israeli Occupation of the West Bank and the Crime of
Apartheid: Legal Opinion (June 2020), available at https://tinyurl.com/52ts3abj, pp. 23-26. That
said, “[n]one of this precludes an alternative analysis of this issue that does see Israel and the
310
4.81 It is also well established that Israel’s regime is one of “racial oppression
and discrimination”.1217 The CERD Committee has explained in no uncertain terms
that racial discrimination and segregation permeate every aspect of Israel’s conduct
in the OPT:
As regards the specific situation in the Occupied Palestinian
Territory, the Committee remains concerned at the consequences of
policies and practices that amount to segregation, such as the
existence in the Occupied Palestinian Territory of two entirely
separate legal systems and sets of institutions for Jewish
communities in illegal settlements on the one hand and Palestinian
populations living in Palestinian towns and villages on the other
hand. The Committee is appalled at the hermetic character of the
separation of the two groups, who live on the same territory but do
not enjoy either equal use of roads and infrastructure or equal access
to basic services, lands and water resources. Such separation is
materialized by the implementation of a complex combination of
movement restrictions consisting of the Wall, the settlements,
roadblocks, military checkpoints, the obligation to use separate
roads and a permit regime that impacts the Palestinian population
negatively.1218
4.82 The oppressive and discriminatory nature of the occupation manifests itself
in at least five ways.
4.83 First, as noted by the CERD Committee in the passage just quoted, a key
feature of the occupation is the dual legal system, which applies in radically
different ways to Palestinians and Jewish Israeli settlers. According to the former
territories it controls as a single regime. However, we believe that although the Israeli regime, in
the sense of a governing system, is clearly in the process of expansion into the West Bank, at this
stage, these are two regimes undergoing a fluctuating process of unification.” Ibid., p. 25.
1217 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 31(a).
1218 2020 CERD Concluding Observations, para. 22.
311
OPT Special Rapporteur Michael Lynk, the legal frameworks governing the lives
of Palestinians and Jewish Israeli settlers are completely distinct:
The lives of the Palestinians in the West Bank are governed by more
than 1,800 military orders issued since 1967 by the Commander of
the Israel Defense Forces, covering such issues as security, taxation,
transportation, land planning and zoning, natural resources, travel
and the administration of justice. In particular, Israel has imposed a
military legal system in the West Bank that applies to Palestinians
but not the Jewish settlers.1219
4.84 This “application of dual bodies of laws has created a reality where two
people live in the same territory, but only one enjoys robust rights protection”.1220
As explained in Chapter 2, Section V, this means that, inter alia:
• Palestinians (including children) are prosecuted in a military criminal
justice system that denies them due process rights and provides them
distinct and inferior protections than are provided to Jewish Israeli
settlers;
• Palestinians, unlike Jewish Israeli settlers, are detained for security
purposes “without charge or trial based on undisclosed evidence for
indefinite periods, without an opportunity to meaningfully challenge the
detention”;1221 and
• Palestinians’ exercise of civil and political rights in the OPT is restricted
through the application of martial law, while Jewish Israeli settlers face
distinct and more permissive restrictions.
1219 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 41.
1220 HRW 2021 Report, p. 86.
1221 Human Rights Council, Implementation of Human Rights Council resolutions S-9/1 and S-12/1,
UN Doc. A/HRC/40/39 (15 Mar. 2019), para. 32.
312
4.85 Second, the occupation has fragmented the Palestinian population through
discriminatory restrictions on movement and the creation of strictly separated
enclaves. Not only are Gaza, East Jerusalem and the West Bank physically severed
from one another, but even the “[t]he West Bank itself is further splintered into 165
disconnected enclaves”.1222 As explained in Chapter 2, Section III, this physical
fragmentation is achieved through, inter alia, the blockade of Gaza,1223 the
Wall,1224 requirements for travel permits within and among the OPT,1225 the
maintenance of an intricate web of hundreds of checkpoints and roadblocks,1226
and a segregated road system.1227
4.86 Third, Palestinians face extreme discrimination with regard to land use
across the OPT. In addition to frequently being separated from their own private
property and agricultural lands by the Wall, Palestinians are prevented from using
even the remaining land that they can access. In the West Bank and East Jerusalem,
as explained in Chapter 2, Section II(C):
• Israel allocates the majority of the public land in the OPT to Jewish
Israeli settlers, allowing the construction of the settlements that are now
1222 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 42.
1223 See supra Chapter 2, § III(B).
1224 See supra paras. CHAPTER 1.I. A.1(a)i.2.70-CHAPTER 1.I. A.1(a)i.2.74.
1225 See supra paras. CHAPTER 1.I. A.1(a)i.2.72-CHAPTER 1.I. A.1(a)i.2.76.
1226 See supra paras. CHAPTER 1.I. A.1(a)i.2.77-CHAPTER 1.I. A.1(a)i.2.81.
1227 See supra paras. CHAPTER 1.I. A.1(a)i.2.82-CHAPTER 1.I. A.1(a)i.2.85.
313
home to approximately 700,000 Jewish Israeli settlers,1228 whereas
Palestinians have been allocated only 0.7 percent of that land;1229
• Palestinians are effectively prevented from building new structures,
including through the widespread denial of building permits; and
• Israel systematically demolishes structures belonging to Palestinians in
the OPT, frequently citing building violations.
4.87 And in Gaza, which is among the most densely populated territories in the
world, Israel enforces a “buffer zone” that is inside Gaza rather than in Israel, thus
depriving Palestinians of precious land for housing or agriculture.1230
4.88 Fourth, as demonstrated in Chapter 3, Sections II(E)-(J), Palestinians face
extreme discrimination in the enjoyment of their most basic economic, social and
cultural rights. And, as detailed in Chapter 3, Section IV(F), and as confirmed by
Human Rights Watch, this intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity amounts to the crime against
humanity of persecution.1231 This finding is unsurprising given that, in addition to
imposing discrimination on Palestinians’ enjoyment of basic civil and due process
rights,1232 the occupation regime enforces enormous social and economic
disparities between Palestinians and Jewish Israeli settlers:
Israeli settlers in the West Bank, all of whom live in Jewish-only
settlements, have the full panoply of laws and benefits of the
1228 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 9.
1229 C. Levinson, “Just 0.7% of State Land in the West Bank has been allocated to Palestinians,
Israel admits,” Haaretz (28 Mar. 2013), available at https://tinyurl.com/46s6c9w2.
1230 See supra Chapter 2, § III(B).
1231 HRW 2021 Report, p. 205.
1232 See supra Chapter 3, §§ II(A)-(D), (K).
314
citizenship of Israel extended to them personally and
extraterritorially. Like Israelis in Tel Aviv or Eilat, the West Bank
settlers have the same access to health insurance, national insurance,
social services, education, regular municipal services and the right
of entry into and out of Israel and around much of the West Bank.
They also received targeted benefits and incentives from the
Government of Israel to live and work in the settlements. The
settlers are an integrated part of a wealthy society with a European
standard of living. The utilities and services that the settlements
enjoy – water, power, housing, access to well-paid jobs, roads and
industrial investment – are far superior to those available to the
Palestinians.1233
4.89 Fifth, the occupation oppresses Palestinians by enforcing their isolation
from the outside world. The OPT lack any land, sea or air access to the rest of the
world. As explained in Chapter 2, Sections II(A) and III, Israel strictly controls the
ability of Palestinians to enter or leave their homeland, depriving them of
educational and economic opportunities abroad, family reunification, foreign
investment and tourism, and the potential to exist culturally and politically as an
undivided society. Indeed, “[n]o other society in the world faces such an array of
cumulative challenges that includes belligerent occupation, territorial
discontinuity, political and administrative divergence, geographic confinement and
economic disconnectedness”.1234
2. Israel’s Occupation Overtly Pursues the Maintenance of Domination by
One Racial Group, Jewish Israelis, over Another, Palestinians
4.90 As detailed in the Expert Report of Professor Rashid Khalidi, Zionism as a
doctrine underpinning the establishment of the State of Israel is incompatible with
1233 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 39.
1234 UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/71/554 (19 Oct. 2016), para. 41.
315
the mere presence of a substantial indigenous Palestinian population, let alone their
equal participation in society.1235 Israel’s intention to maintain domination over
Palestinians can be traced back to its establishment as a State in 1948, and the
expulsion of half of the indigenous population of Palestine from their homes during
the Nakba. The intent to maintain domination is evidenced in at least three ways.
4.91 First, Jewish Israeli racial domination is expressly enshrined in Israeli law
and openly endorsed by high-ranking Israeli officials. For example, the 2018
Nation-State Law affirms Jewish supremacy as a national value of constitutional
character. The law makes no reference to equality but provides that the “realization
of the right to national self-determination in the State of Israel is exclusive to the
Jewish people”, and that “[t]he State views the development of Jewish settlement
as a national value, and shall act to encourage and promote its establishment and
consolidation”.1236 Prime Minister Netanyahu has been perfectly clear: “Israel is
not a State of all its citizens”.1237
4.92 The doctrine of supremacy is exacerbated by rampant hate speech and
incitement against Palestinians at all levels of Israeli society. This has caused the
CERD Committee to note with concern “[t]he tide of racist hate speech in public
discourse, in particular by public officials, political and religious leaders, in certain
media outlets and in school curricula and textbooks”.1238 Among many other
examples, Israeli officials at the ministerial level have endorsed pogroms and called
1235 See Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-1967) (20 July 2023). QWS,
Vol. II, Annex 1.
1236 Israel, Basic Law: Israel—the Nation-State of the Jewish People (19 July 2018), available at
https://tinyurl.com/5n9b4nhs, arts. 1(c), 7.
1237 N. Landau, “Arabs Aren't ‘Second-class Voters,’ President Rivlin Rebukes Netanyahu,”
Haaretz (11 Mar. 2019), available at https://tinyurl.com/3tkdtky9; “Benjamin Netanyahu says
Israel is ‘not a state of all its citizens’,” The Guardian (10 Mar. 2019), available at
https://tinyurl.com/mrxw9xw8.
1238 2020 CERD Concluding Observations, para. 26(a).
316
for the complete destruction of Palestinian towns.1239 This led the UN Security
Council to issue an unprecedented statement in February 2023, in which it “note[d]
with deep concern instances of discrimination, intolerance and hate speech
motivated by racism”.1240
4.93 Second, Israel’s intent to maintain domination over Palestinians is
evidenced by its policies and practices of demographic engineering and ethnic
cleansing of Palestinians from their lands.
4.94 There are numerous official policy documents detailing Israel’s plans to
engineer demographically the territory under its control, to restrict Palestinians to
the smallest area of land possible, and to build and populate as many settlements
as possible.1241 For example, Israel’s official plan for the municipality of Jerusalem
(including East Jerusalem) is “maintaining a solid Jewish majority in the city”,
meaning keeping the Palestinian population under 40 percent.1242 At the same time,
Israeli officials have openly justified the choice to cease settlement activity in Gaza
“because of demography”.1243 In August 2005, in the lead up to the withdrawal
from Gaza, then Prime Minister Ariel Sharon explained that obtaining a Jewish
majority in Gaza was not realistic because “[o]ver one million Palestinians live
there, and they double their numbers with every generation”.1244 It has chosen
1239 See, e.g., M. Bachner,” Israel should ‘wipe out’ Palestinian town of Huwara, says senior minister
Smotrich,” Time of Israel (1 Mar. 2023), available at https://tinyurl.com/4unj8hhy.
1240 UNSC, Statement by President of the Security Council, UN Doc. S/PRST/2023/1 (20 Feb. 2023)
(Dossier No. 1400), p. 2.
1241 See HRW 2021 Report, pp. 66-72.
1242 Ibid., p. 63.
1243 Ibid., pp. 73-74.
1244 Ibid.
317
instead to deal with the Palestinian population there by enforcing a blockade and
removing them from the “demographic calculus”.1245
4.95 There is no shortage of explicit statements by Israeli politicians
underscoring their intent to maintain a Jewish demographic majority in as much
territory as possible. This includes current and former prime ministers such as
Yitzhak Rabin, Ehud Barak, Ariel Sharon, Benjamin Netanyahu and Yair
Lapid.1246 The latter, who is today viewed as a “moderate” leader of the political
opposition to the Netanyahu government, stated in 2016 that his guiding “principle
says maximum Jews on maximum land with maximum security and with minimum
Palestinians”.1247
4.96 As explained by Amnesty International, this demographic and spatial
engineering is directly linked to an intent to maintain domination over Palestinians:
[S]tatements by leading Israeli politicians over the years confirm
that the intention to maintain a Jewish demographic majority and to
oppress and dominate Palestinians has guided Israel’s policies since
the state’s creation … successive Israeli politicians – regardless of
their political affiliations – have publicly stated their intention to
1245 Ibid., p. 127.
1246 Amnesty International 2022 Report, pp. 67-68 (“in December 2003, when he was minister of
finance, Benjamin Netanyahu said: ‘If there is a demographic problem, and there is, it is with the
Israeli Arabs who will remain Israeli citizens.’ … When prime minister between 1992 and 1995,
Yitzhak Rabin said: ‘The red line for Arabs is 20 percent of the population; that must not be gone
over.’ He added: ‘I want to preserve the Jewish character of the state of Israel.’ Ehud Barak, when
he was prime minister between 1999 and 2001, equated a ‘Muslim majority’ with ‘destruction of
Israel as a Jewish state’. Ariel Sharon, as prime minister, said in a 2002 Knesset debate that while
Palestinian citizens had ‘rights in the land’, ‘all rights over the land of Israel are Jewish rights’.
Ehud Olmert said in 2003, while vice prime minister and three years before he became prime
minister, that ‘the demographic issue’ would ‘dictate the solution we must adopt’ and that the
‘formula for the parameters of a unilateral solution are: to maximize the number of Jews; to
minimize the number of Palestinians.’”).
1247 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 46.
318
minimize Palestinians’ access to and control of land across all
territories under Israel’s effective control.1248
4.97 Third, Israel suppresses any forms of dissent and prevents the realization of
any form of self-determination or independence for Palestinians. As explained by
Amnesty International:
Israeli policies aim to fragment Palestinians into different
geographic and legal domains of control not only to treat them
differently, or to segregate them, from the Jewish population, but
also to treat them differently from each other in order to weaken ties
between Palestinian communities, to suppress any form of sustained
dissent against the system they have created, and ensure more
effective political and security control over land and people across
all territories.1249
4.98 The intent to achieve domination through physical fragmentation is overtly
acknowledged in a 1980 master plan for settlement of the West Bank prepared by
the quasi-governmental World Zionist Organization. The plan, known as the
“Drobles Plan”, proposes “to settle the land between the minority population
centers and their surroundings” so as to make it “hard for Palestinians to create
territorial contiguity and political unity”.1250 A comparison of the Drobles Plan
map and the map of the West Bank today, reproduced as Figure 4.1 following this
page, reveals that this fragmentation plan has succeeded.
4.99 This has led many, including two former Israeli ambassadors to South
Africa, to draw parallels with the Bantustan system of the South African apartheid
regime:
1248 Amnesty International 2022 Report, p. 67.
1249 Ibid., p. 17.
1250 HRW 2021 Report, p. 68.
Figure 4.1
319
The Bantustans of South Africa under the apartheid regime and the
map of the occupied Palestinian territories today are predicated on
the same idea of concentrating the ‘undesirable’ population in as
small an area as possible, in a series of non-contiguous enclaves. By
gradually driving these populations from their land and
concentrating them into dense and fractured pockets, both South
Africa then and Israel today worked to thwart political autonomy
and true democracy.1251
4.100 In light of the above, there can be no doubt about the intentional nature of
Israel’s regime of domination. As explained by Amnesty International, after half a
century of occupation, the situation today is no accident: “[t]he intention to
maintain this regime can be inferred from the prolonged nature of the cruel and
discriminatory treatment, which indicates the non-accidental nature of the
oppression and domination perpetrated against Palestinians”.1252
3. Israel’s Occupation Is Maintained through a Wide Range of Inhumane
Acts
4.101 The numerous and widespread inhumane acts Israel has committed, and
continues to commit, to maintain the occupation have been detailed in Chapter 3
above and need not be repeated here. Among other things, Israel’s conduct consists
of a wide range of crimes against humanity, which amount to “inhumane acts”
within the meaning of the Rome Statute.1253 These include murder, deportation and
forcible transfer of populations, imprisonment and severe deprivation of physical
1251 F. Ebel, “Israel-Palestine: Former Israeli ambassadors to South Africa call occupation
‘apartheid’,” Middle East Eye (8 June 2021), available at https://tinyurl.com/3mzyz9dc.
1252 Amnesty International 2022 Report, p. 218.
1253 Rome Statute, art. 7(2)(h).
320
liberty in violation of fundamental rules of international law, torture, and
persecution.1254
4.102 In addition, as established in detail by the reports referenced in paragraph
4.76 above, Israel has engaged in numerous “inhuman acts” enumerated in the
Apartheid Convention, including:
• “[L]egislative measures and other measures calculated to prevent a
racial group or groups from participation in the political, social,
economic and cultural life of the country and the deliberate creation of
conditions preventing the full development of such a group or groups”;
• Denying Palestinians “the right to leave and to return to their country,
the right to a nationality, the right to freedom of movement and
residence, the right to freedom of opinion and expression, and the right
to freedom of peaceful assembly and association”;
• “[M]easures including legislative measures, designed to divide the
population along racial lines by the creation of separate reserves and
ghettos for the members of a racial group or groups”;
• “[T]he expropriation of landed property belonging to a racial group or
groups or to members thereof”; and
• “Persecution of organizations and persons, by depriving them of
fundamental rights and freedoms, because they oppose apartheid.”1255
4.103 As detailed in Chapter 2, all of the foregoing inhumane acts are regularly
carried out against Palestinians in the context of, and in furtherance of, the
occupation.
1254 See, e.g., Amnesty International 2022 Report, pp. 219-263; Human Rights Council, Report of
Special Rapporteur S. M. Lynk on the situation of human rights in the Palestinian territories
occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), para. 55.
1255 Apartheid Convention, art. II(c, d, f).
321
4.104 The foregoing section established that the occupation constitutes an
institutionalized regime pursuing racial oppression and discrimination against
Palestinians, that the regime is intended to secure the domination of Jewish Israelis
over Palestinians, and that the regime is carried out and maintained through
innumerable inhumane acts. The inescapable conclusion is that the occupation
itself constitutes an apartheid regime prohibited by international law.
C. AS A REGIME OF APARTHEID, THE OCCUPATION IS ILLEGAL AND ITS
CONTINUED EXISTENCE ENTAILS A SERIOUS BREACH OF A PEREMPTORY NORM
4.105 The Court has recognized on numerous occasions that more than one source
of law or legal regime may govern the same acts or omissions by a State.1256 It is
therefore immaterial that Israel’s occupation can also be viewed as an (illegal)
belligerent occupation within the meaning of the term under international law. That
does not preclude finding that the very same state of affairs can also be qualified
as a regime of apartheid. Moreover, as demonstrated, the occupation is much more
than a military operation: it is an integrated apparatus that has controlled every
aspect of the lives of millions of Palestinians for more than two generations. It is
an extremely sophisticated civilian and military mechanism designed to be
maintained indefinitely and perpetuate Israel’s longstanding colonial project.
4.106 After more than half a century, the forest can no longer be missed for the
trees. This shift in paradigm was aptly explained by the Israeli human rights
organization Yesh Din:
After 15 years of research and legal representation of Palestinians
living under occupation, we feel the time has come to ask ourselves
1256 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392,
para. 73; Wall Advisory Opinion, para. 106.
322
what the legal phenomenon we see in this area is. Does the
occupation paradigm fully explain what goes on in this area and
what Israel has created in it, or is some other legal construct at play
in addition to it?1257
4.107 Yesh Din ultimately reached the same conclusion as dozens of other
reputable human rights organizations: this is apartheid.
4.108 Since the prohibition of apartheid is a jus cogens norm, a finding that the
occupation amounts to a regime of apartheid entails, ipso facto, a finding that the
maintenance of the occupation is a breach of a peremptory norm. Moreover, given
its sheer scale and prolonged existence, there can be no doubt about Israel’s “gross
or systematic failure”1258 to respect the peremptory prohibition of apartheid. As
such, the ongoing maintenance of the occupation amounts to “a serious breach …
of an obligation arising under a peremptory norm of general international law”1259
and entails all the corresponding consequences for Israel, third States, and
international organizations described in Chapter 5.
***
4.109 In conclusion, Israel’s occupation of the OPT entails the indefinite violation
of the right to self-determination and the prohibition of apartheid—both jus cogens
norms of international law. These egregious violations of peremptory norms of
1257 Yesh Din & Adv. M. Sfard, The Israeli Occupation of the West Bank and the Crime of
Apartheid: Legal Opinion (June 2020), available at https://tinyurl.com/52ts3abj, pp. 5-6 (emphasis
in original).
1258 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (2001) (Vol. II, Pt. 2), art.
40(2).
1259 Ibid., art. 40(1).
323
international law render the occupation illegal as a whole. Israel’s occupation, as
discussed further in Chapter 5, must therefore be brought to an end expeditiously.
325
CHAPTER 5
THE LEGAL CONSEQUENCES ARISING FROM ISRAEL’S ILLEGAL
OCCUPATION OF, AND DISCRIMINATORY POLICIES AND
PRACTICES IN, THE OCCUPIED PALESTINIAN TERRITORY
5.1 This is the fourth request asking the Court for an advisory opinion on the
legal consequences arising from an illegal situation,1260 and the second relating to
Israel’s conduct in the OPT.1261 The Court held in its Namibia Advisory Opinion
that “[a] binding determination made by a competent organ of the United Nations
to the effect that a situation is illegal cannot remain without consequence”.1262
Here, numerous legal consequences arise from Israel’s illegal occupation of, and
discriminatory policies and practices in, the OPT. Those legal consequences are the
subject of this Chapter.
5.2 General Assembly Resolution 77/247 expressly asks the Court to address
the legal consequences arising from Israel’s wrongful conduct “for all States and
for the United Nations”.1263 Therefore, Section I focuses on legal consequences for
Israel, Section II discusses legal consequences that arise for all other States in light
of Israel’s serious breaches of peremptory norms, and Section III addresses legal
consequences that arise for the United Nations.
5.3 As these Sections demonstrate, the legal consequences arising from Israel’s
numerous, egregious, and long-standing violations are far-reaching and flow
directly from well-established principles of international law. Because the Court’s
1260 Namibia Advisory Opinion; Wall Advisory Opinion; Chagos Advisory Opinion.
1261 Wall Advisory Opinion.
1262 Namibia Advisory Opinion, para. 117.
1263 UNGA, Resolution 77/247, Israeli practices affecting the human rights of the Palestinian
people in the Occupied Territory, including East Jerusalem, UN Doc. A/RES/77/247 (30 Dec.
2022) (Dossier No. 3) (hereinafter, “UNGA Res. 77/247”), para. 18(b).
326
Wall Advisory Opinion regrettably fell on deaf ears, Qatar respectfully submits that
the Court should spell out as precisely and as comprehensively as possible all legal
consequences arising from Israel’s wrongful conduct for each of the three
categories of legal subjects identified in the following three Sections (i.e., Israel,
all other States, and the United Nations). All States and the United Nations will
thus be guided by the Court’s advisory opinion in order to effectively—and
legally—help bring to an end the ongoing grave violations perpetrated by Israel,
and help attenuate as much as possible the current suffering of the Palestinian
people.
5.4 The Court is also called on by the General Assembly to determine “[h]ow
… the policies and practices of Israel … affect the legal status of the
occupation”.1264 In this regard, Qatar invites the Court to clearly state that the
wrongful policies and practices of Israel do not have any legal effect on the status
of the OPT. Ex injuria jus non oritur. Moreover, Israel’s policies and practices have
not changed the illegal character of its occupation, which, at the same time,
proceeds from and constitutes an ongoing breach of the inalienable right of the
Palestinian people to self-determination. However, these policies and practices
have exacerbated the occupation in the sense that they have added a particularly
egregious layer of wrongfulness to Israel’s illegal occupation. Indeed, through
those policies and practices, Israel’s illegal occupation has transformed into a
regime of institutionalized and entrenched discrimination against the Palestinians.
Qatar invites the Court to call out Israel’s illegal occupation for what it has become
under international law: apartheid.
1264 UNGA Res. 77/247, para. 18(b).
327
I. Legal Consequences for Israel
5.5 The most widely accepted framework for the legal consequences for States
responsible for internationally wrongful acts is found in Part II of the ILC’s Articles
on Responsibility of States for Internationally Wrongful Act (“ARSIWA”).
Pursuant thereto, Israel is under the obligations to: cease its occupation and
discriminatory policies and practices (Section A); offer appropriate assurances and
guarantees of non-repetition (Section B); and make full reparation for the injury
caused (Section C).
A. ISRAEL IS UNDER AN OBLIGATION TO CEASE ITS OCCUPATION AND
DISCRIMINATORY POLICIES AND PRACTICES
5.6 Article 30(a) of ARSIWA, which reflects customary international law,1265
provides that “[t]he State responsible for the internationally wrongful act is under
an obligation … to cease that act, if it is continuing”.1266 Chapters III and IV
demonstrated that Israel’s occupation of, and discriminatory policies and practices
in, the OPT are internationally wrongful. They are also continuing. Israel is
therefore under an obligation to cease them immediately.
5.7 Most prominently, this entails Israel’s immediate withdrawal of its
administration from, and effective control of, the OPT. Qatar respectfully submits
that the Court should expressly recognize this obligation in the dispositif of its
advisory opinion, just as it did in the Namibia advisory opinion, where it held that
“the continued presence of South Africa in Namibia being illegal, South Africa is
1265 Namibia Advisory Opinion, para. 118; Wall Advisory Opinion, para. 150; Chagos Advisory
Opinion, para. 178.
1266 ILC, Responsibility of States for Internationally Wrongful Acts, in YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 2001 (Vol. II, Pt. 2) (hereinafter, “ARSIWA”), art. 30(a).
328
under obligation to withdraw its administration from Namibia immediately and
thus put an end to its occupation of the Territory”.1267
5.8 Qatar respectfully submits that the Court should indicate in the dispositif
additional specific measures Israel must undertake to cease its occupation. In
particular, Israel must, inter alia:
• Repeal or render ineffective any laws, statutes, regulations or other
measures, through which Israel purports to exercise governmental
authority in the OPT;
• Repeal or render ineffective all military orders applicable to the OPT;
• Cease the development of additional Jewish Israeli settlements in the
West Bank, including East Jerusalem, and withdraw such settlements
that already exist;
• Dismantle the Wall in the West Bank, including East Jerusalem (as the
Court already held in the Wall advisory opinion1268); and
• Lift the blockade of the Gaza Strip.
5.9 It is not just Israel’s occupation per se that is internationally wrongful. As
described in Chapter 3, Israel’s discriminatory legislation and measures, including
those aimed at altering the demographic composition of the Holy City of Jerusalem,
are too. As a result, Israel is also under an obligation to repeal or render ineffective
all such legislation and measures, as the General Assembly and the Security
Council have repeatedly affirmed.1269
1267 Namibia Advisory Opinion, para. 133(1).
1268 Wall Advisory Opinion, para. 163(3)(B).
1269 See, e.g., UNGA, Resolution ES-10/19, Status of Jerusalem, UN Doc. A/RES/ES-10/19 (21
Dec. 2017) (Dossier No. 1231), para. 1 (“Affirms that any decisions and actions which purport to
329
5.10 In addition, Israel is under an obligation to release Palestinians whom it has
wrongfully detained as a result of their activism in support of Palestinian selfdetermination.
It must also cease economically exploiting the natural resources of
the OPT. And it must dismantle the physical obstacles to the exercise of
Palestinians’ freedom of movement and permit them freely to travel amongst the
West Bank, East Jerusalem, and Gaza, and to leave the OPT.
5.11 In Qatar’s view, the Court should expressly recognize Israel’s obligations
to take all the aforementioned actions in the dispositif of its advisory opinion.
B. ISRAEL IS UNDER AN OBLIGATION TO OFFER
APPROPRIATE ASSURANCES AND GUARANTEES OF NON-REPETITION
5.12 Article 30(b) of ARSIWA provides: “The State responsible for the
internationally wrongful act is under an obligation … to offer appropriate
assurances and guarantees of non-repetition, if circumstances so require.”1270
5.13 The Court has made clear that it “may order … a State responsible for
internationally wrongful conduct to provide the injured State with assurances and
guarantees of non-repetition … if the circumstances so warrant”.1271 The Court has
further held that assurances and guarantees of non-repetition “will be ordered only
have altered the character, status or demographic composition of the Holy City of Jerusalem have
no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of
the Security Council, and in this regard calls upon all States to refrain from the establishment of
diplomatic missions in the Holy City of Jerusalem”); UNGA, Resolution 26/82, The situation in the
Middle East, UN Doc. 46/82 (16 Dec. 1991) (Dossier No. 583), Part A, para. 8; ibid., Part B, para.
1. UNGA, Resolution 76/12, Jerusalem, UN Doc. A/RES/76/12 (6 Dec. 2021) (Dossier No. 638),
para. 1; UNGA Res. 77/126, para. 2; UNSC Res. 478 (1980), para. 3; UNSC Res. 2334 (2016),
Preamble.
1270 ARSIWA, art. 30(b).
1271 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J.
Reports 2009, p. 213, para. 150.
330
‘in special circumstances’” because “there is no reason to suppose that a State
whose act or conduct has been declared wrongful by the Court will repeat that act
or conduct in the future, since its good faith must be presumed”.1272 In the LaGrand
case, the Court found that Germany’s request for a general assurance of nonrepetition
had been satisfied because the United States expressed a “commitment
… to ensure implementation of the specific measures adopted in performance of
[the] obligations” that it had breached.1273
5.14 In contrast to the United States in that case, Israel here has neither
committed to adopt, nor actually adopted, any measures to implement the
obligations that it is currently breaching and has been breaching for over 55 years.
On the contrary, Israel’s long-standing policy is to maintain its illegal occupation.
It has persisted in doing so in flagrant disregard of the Court’s Advisory Opinion
in the Wall case, and the repeated resolutions of the General Assembly and the
Security Council. There is thus every reason to believe that Israel will repeat its
grave violations of international law in the future.
5.15 The ILC has expressed the view that, in addition to the risk of repetition,
the nature of the obligation(s) breached and the gravity of the breach(es) are also
factors that should be considered in determining if the circumstances require
assurances and guarantees of non-repetition.1274 Here, in view of the peremptory
norms Israel has breached and the seriousness of those violations, these factors
1272 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment, I.C.J. Reports 2015, p. 665 at p. 717, para. 141 (citing Dispute regarding Navigational
and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 213, para. 150).
1273 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466, para.
124.
1274 ILC, Report of the International Law Commission on the work of its fifty-second session (2000),
UN Doc. A/CN.4/513 (15 Feb. 2001), para. 57.
331
weigh heavily in favour of finding that Israel must provide such assurances and
guarantees.
5.16 Consequently, in these circumstances, Israel must be required to offer
appropriate assurances and guarantees of non-repetition with respect not only to its
occupation of the OPT, but also to all of its discriminatory policies and practices
therein, and all other measures taken in the course of its occupation thereof. Qatar
respectfully submits that the Court should state this requirement in the dispositif.
C. ISRAEL IS UNDER AN OBLIGATION TO MAKE FULL REPARATION FOR THE
INJURY CAUSED BY ITS OCCUPATION AND
DISCRIMINATORY POLICIES AND PRACTICES
5.17 In its Judgment on the merits in the Armed Activities case, the Court held
that “it is well established in general international law that a State which bears
responsibility for an internationally wrongful act is under an obligation to make
full reparation for the injury caused by that act”.1275 This rule is reflected in Article
31 of ARSIWA, which also makes clear that the “[i]njury includes any damage,
whether material or moral”.1276
5.18 Articles 34 to 37 of ARSIWA further specify that: full reparation shall take
the form of restitution (Section 1); insofar as the damage is not made good by
restitution, full reparation shall take the form of compensation (Section 2); and
insofar as the injury cannot be made good by restitution or compensation, full
reparation shall take the form of satisfaction (Section 3).
1275 Armed Activities Judgment on the Merits, para. 259.
1276 ARSIWA, art. 31(2).
332
1. Israel Is Under an Obligation to Make Restitution
5.19 Pursuant to Article 35 of ARSIWA, Israel first and foremost is under an
obligation to make restitution, that is, “to re-establish the situation which existed
before the wrongful act was committed”.1277 After more than 55 years, it is not
possible to entirely revert to the situation that existed prior to Israel’s unlawful
occupation of the OPT. The injury that Israel has inflicted is literally irreversible.
There are, however, a number of specific acts that Israel can and must take to reestablish,
to the greatest extent possible, the pre-existing situation. Some of these
acts may effectively be accomplished through the acts of cessation set forth above
in Section I(A).
5.20 In addition to those acts of cessation, Israel is also under an obligation to
make restitution by facilitating the return of Palestinians whom Israel forcibly
displaced. This facilitation would require that Israel return all lands that it
confiscated from Palestinians in the OPT. It is of course not possible for Israel to
compel all those whom it forcibly displaced to return to their homes. But it must
do everything within its power to facilitate that return should the victims wish to
come back.
5.21 The performance of this obligation, on top of those set forth in Section I(A),
would be required for Israel to fulfil its obligation to make restitution. The Court
should thus expressly specify them in the dispositif of its advisory opinion.
1277 Ibid., art. 35.
333
2. Israel Is Under an Obligation to Compensate for the Damage Caused
5.22 In accordance with Article 36 of ARSIWA, insofar as damage is not made
good by restitution, full reparation shall take the form of compensation.1278
Importantly, this compensation “shall cover any financially assessable damage
including loss of profits insofar as it is established”.1279
5.23 The Court has already expressed itself clearly in this regard in relation to
Israel’s conduct. In the Wall Advisory Opinion, it held:
Israel is accordingly under an obligation to return the land, orchards,
olive groves and other immovable property seized from any natural
or legal person for purposes of construction of the wall in the
Occupied Palestinian Territory. In the event that such restitution
should prove to be materially impossible, Israel has an obligation to
compensate the persons in question for the damage suffered. The
Court considers that Israel also has an obligation to compensate, in
accordance with the applicable rules of international law, all natural
or legal persons having suffered any form of material damage as a
result of the wall’s construction.1280
5.24 In the present case, Israel is under an obligation to compensate for all
damage caused to individual natural or legal persons (in particular, Palestinian
persons) as a result of its pronged occupation of the OPT, and its discriminatory
policies and practices carried out therein. This includes but is by no means limited
to: killings; detentions; physical injuries; psychological and mental health injuries;
1278 ARSIWA, art. 36. See also Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Reparations, Judgment, p. 34 (hereinafter, “Armed Activities
Judgment on Reparations”), para. 101; Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018, p. 15, para. 31;
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14,
para. 273.
1279 ARSIWA, art. 36(2).
1280 Wall Advisory Opinion, para. 153.
334
destruction of and damage to homes and other property that cannot be restored; and
financially assessable damage to businesses.
5.25 The provision of compensation to individual victims of discriminatory
persecution is rooted in State practice.1281 For example, from 1952 to 1999, the
Government of the Federal Republic of Germany enacted legislation and concluded
agreements with many States as well as the Jewish Claims Conference to provide
compensation to individual victims of the Nazi regime.1282 More than EUR 80
billion has been distributed through these mechanisms up to the present day.1283 As
another example, the Truth and Reconciliation Commission of South Africa in
1998 recommended the payment of ZAR 21,700 per year for six years to every
victim of apartheid in the country.1284 And while the Government did not fully
implement this recommendation, it did approve the one-time payment of ZAR
30,000 in compensation to each victim.1285 To give an even more recent example,
in 2013, the United Kingdom agreed to pay GBP 19.9 million in damages for its
1281 UNGA, Report of Special Rapporteur T. Achiume on contemporary forms of racism, racial
discrimination, xenophobia and racial intolerance, UN Doc. A/74/321 (21 Aug. 2019), paras. 42-
44.
1282 Federal Republic of Germany, Federal Ministry of Finance, Wiedergutmachung: Provisions
relating to compensation for National Socialist injustice (May 2023), available at
https://tinyurl.com/mrykek4j, pp. 6-22.
1283 Ibid., p. 24 (Annex 1).
1284 Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission
of South Africa Report, Vol. 5 (29 Oct. 1998), available at https://tinyurl.com/ymsp9tt7, pp. 184-
185.
1285 Republic of South Africa, Justice on Truth and Reconciliation Commission recommendations
for identified victims (11 Nov. 2014), available at https://tinyurl.com/msmu6ece. This amount was
widely criticized because it was much lower than what the Truth and Reconciliation Commission
had recommended. See “Apartheid victims struggle on for justice,” Al Jazeera (28 May 2003),
available at https://tinyurl.com/4xrxjduh; “Apartheid victims reject compensation fund,” Al Jazeera
(10 Dec. 2003), available at https://tinyurl.com/ycysd2c9.
335
discriminatory persecution of individual Kenyans involved in the Mau Mau
rebellion of the 1950s.1286
5.26 In addition to individual compensation, Israel also has the obligation to
compensate for all damage caused to Palestinian society as a whole due to its
occupation and discriminatory policies and practices. This damage is, of course,
not easily quantifiable. There is also no amount of money that could fully restore
Palestinian society to what it was prior to the occupation, or what it would be today
had Israel not occupied the Palestinian territory and implemented discriminatory
policies and practices therein. One way in which Israel could nevertheless perform
this obligation is to engage with Palestine with the aim of settling on a reasonable
compensatory figure that Israel would commit to paying for these societal harms.
5.27 Compensation for societal-level damage also has precedents. For example,
in September 1952, the Federal Republic of Germany concluded an agreement with
Israel to pay it DM 3 billion “to help uprooted Jewish refugees without means who
had come from Germany and from territories that had previously been under
German rule”.1287 The Truth and Reconciliation Commission of South Africa
similarly recommended the implementation of community rehabilitation
1286 O. Bowcott, “Mau Mau rebellion victims claim parliament was misled over torture,” The
Guardian (23 May 2016), available at https://tinyurl.com/8e4hrfxm.
1287 Federal Republic of Germany, Federal Ministry of Finance, Wiedergutmachung: Provisions
relating to compensation for National Socialist injustice (May 2023), available at
https://tinyurl.com/mrykek4j, p. 6.
336
programmes for victim communities of apartheid,1288 and the Government
allocated ZAR 30 million to each such programme.1289
5.28 In addition to the injuries caused to Palestinian individuals and society,
Israel has, as explained in Chapter 2, Section VII, also exploited natural resources
belonging to the State of Palestine. It is therefore also under an obligation to
compensate the State of Palestine for the value of those resources, just as the Court
required Uganda to compensate the Democratic Republic of the Congo for the
illegal exploitation of the latter’s natural resources.1290
5.29 There are multiple means by which Israel could implement its obligation to
pay compensation. For example, it could unilaterally establish a fund to which
applications could be made to receive compensation for damage caused by the
unlawful occupation—not unlike the model adopted in South Africa. Israel’s
obligation could also be discharged through its contribution to funds established by
bilateral agreements, as was the case for much of the compensation paid by the
Federal Republic of Germany.
3. Israel Is Under an Obligation to Give Satisfaction
5.30 Pursuant to Article 37(1) of ARSIWA, insofar as injury cannot be made
good by restitution or compensation, full reparation shall take the form of
satisfaction.1291 The Court confirmed this in its 2022 Judgment in the Armed
1288 Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission
of South Africa Report, Vol. 5 (29 Oct. 1998), available at https://tinyurl.com/ymsp9tt7, pp. 190-
194.
1289 See “South Africa: Nearly R2 Billion for Apartheid Reparations Is Unspent,” National African-
American Reparations Commission (13 Dec. 2022), available at https://tinyurl.com/2md5hncn.
1290 Armed Activities Judgment on Reparations, para. 409(1)(c).
1291 ARSIWA, art. 37(1).
337
Activities case.1292 Further, according to Article 37(2) of ARSIWA, “[s]atisfaction
may consist in an acknowledgement of the breach, an expression of regret, a formal
apology or another appropriate modality”.1293
5.31 The full extent of the injury caused by Israel during its illegal occupation
plainly cannot be made good by restitution or compensation or both. Satisfaction
too is therefore required.
5.32 Given the grave, persistent, and flagrant nature of its wrongful conduct,
Israel is under an obligation to expressly acknowledge its breaches and make a
formal, public apology. It must apologize not only for its illegal occupation of the
OPT, but also for its violation of the Palestinian people’s right to selfdetermination,
as well as for its discriminatory policies and practices in the OPT.
While satisfaction usually takes the form of a binding declaration of breach by the
Court in contentious proceedings, the advisory character of these proceedings
prevents the Court’s dispositif from granting this particular remedy. Therefore, the
Court should clearly state that Israel is under an obligation to acknowledge its
violations and to apologize publicly for them.
5.33 Satisfaction in the present context should also be given by requiring Israel
to prosecute individuals within its jurisdiction, including government officials, who
have committed serious international crimes against Palestinians with impunity
throughout the occupation.1294 Such prosecutions would contribute to making full
reparation for all the injury caused by Israel’s wrongful conduct, as the Truth and
1292 Armed Activities Judgment on Reparations, para. 387.
1293 ARSIWA, art. 37(2).
1294 For a discussion of prosecution as a form of satisfaction, see C. Hoss, “Satisfaction,” Max
Planck Encyclopedia of Public International Law (Apr. 2011), paras. 18-19.
338
Reconciliation Commission of South Africa recognized with respect to apartheid
in South Africa.1295
5.34 In addition, relying on the South Africa precedent as well as other
precedents in various Latin American countries like Uruguay, Peru, Chile, and
Ecuador, satisfaction should further be given by requiring Israel to cooperate in the
establishment and operation of a truth and reconciliation commission. The Truth
and Reconciliation Commission of South Africa, for one, was created to investigate
gross human rights violations that were perpetrated during the period of the
apartheid regime from 1960 to 1994, including abductions, killings and torture.1296
Its mandate covered violations by both the State and the liberation movements and
it held special hearings focused on specific sectors, institutions, and individuals.1297
As mentioned above, the Truth and Reconciliation Commission at the end of its
mandate made detailed recommendations for a reparations programme that
included financial, symbolic, and community reparations.1298 Qatar considers that
a similar approach in Palestine would contribute materially to advancing
international justice.
5.35 Qatar respectfully submits that the Court should, in the dispositif, require
Israel to undertake all these various forms of satisfaction.
1295 Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission
of South Africa Report, Vol. 5 (29 Oct. 1998), available at https://tinyurl.com/ymsp9tt7, p. 309.
1296 Republic of South Africa, Promotion of National Unity and Reconciliation Act 34 (1995),
available at https://tinyurl.com/4jj6wsyf, art. 3.
1297 Ibid., arts. 3(1)(a), 5(d); United States Institute of Peace, Truth Commission: South Africa (1
Dec. 1995), available at https://tinyurl.com/y8ywn3fz. See also International Center for
Transitional Justice, South Africa (last accessed: 13 July 2023), available at
https://tinyurl.com/yc4c8jd5.
1298 Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission
of South Africa Report, Vol. 5 (29 Oct. 1998), available at https://tinyurl.com/ymsp9tt7.
339
II. Legal Consequences for All Other States
5.36 As explained in Chapters 3 and 4, Israel’s occupation of, and discriminatory
policies and practices in, the OPT breach multiple peremptory norms of
international law. In accordance with Article 41 of ARSIWA, certain legal
consequences therefore arise for all States.
5.37 These legal consequences include the obligations: not to recognize as
lawful the situation created by Israel’s occupation and related conduct (Section A);
not to render aid or assistance in maintaining that situation (Section B); and to
cooperate to bring to an end Israel’s occupation and related conduct (Section C).
Moreover, all States are under an obligation to help protect the Palestinian people
from war crimes, ethnic cleansing, and crimes against humanity (Section D).
Finally, all States are under an obligation to ensure accountability under
international law for international crimes committed in the context of Israel’s
occupation (Section E).
A. ALL STATES MUST NOT RECOGNIZE AS LAWFUL THE SITUATION CREATED
BY ISRAEL’S OCCUPATION AND RELATED CONDUCT
5.38 Article 41(2) of ARSIWA, which reflects customary international law,1299
provides that “[n]o State shall recognize as lawful a situation created by a serious
breach” of a peremptory norm of general international law.1300
1299 Already in 2001, the International Law Commission had recognized that the duties of nonrecognition
and non-assistance were part of customary international law. See ILC, Draft
Conclusions on identification and legal consequences of peremptory norms of general international
law (jus cogens), with commentaries, UN Doc. A/77/10 (2022), p.76 (note 258).
1300 ARSIWA, art. 41(2).
340
5.39 Consistent with this rule, the Court in its Wall Advisory Opinion stated in
its dispositif: “All States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall …”.1301 In its Namibia
Advisory Opinion, the Court had similarly held: “States Members of the United
Nations are under [the] obligation to recognize the illegality of South Africa’s
presence in Namibia and the invalidity of its acts on behalf of or concerning
Namibia …”.1302
5.40 The Court should come to the same conclusion with respect to the situation
created by Israel’s occupation and related conduct. In particular, it should hold in
the dispositif that all States have the obligation not to recognize as lawful the
situation created by Israel’s occupation of, and discriminatory policies and
practices in, the OPT.
5.41 It is important to add that all States are prohibited from recognizing the
lawfulness of the situation not only expressly, but also impliedly.1303 The Court
itself made this clear in the Namibia Advisory Opinion, in the dispositif of which
it stated that “States Members of the United Nations are under [the] obligation …
to refrain from any acts and in particular any dealings with the Government of
South Africa implying recognition of the legality of … such presence and
administration”.1304
5.42 Accordingly, States are required in their dealings with Israel to distinguish
between the territory it legally controls and the OPT. Indeed, in 2016 the Security
1301 Wall Advisory Opinion, para. 163(3)(D). See also ibid., para. 159.
1302 Namibia Advisory Opinion, para. 133(2).
1303 See UNGA, Resolution 181 (II), Future government of Palestine, UN Doc. A/RES/181(II) (29
Nov. 1947).
1304 Namibia Advisory Opinion, para. 133(2).
341
Council specifically resolved to “[call] upon all States … to distinguish, in their
relevant dealings, between the territory of the State of Israel and the territories
occupied since 1967”,1305 a distinction the Court recognized in the Wall Advisory
Opinion.1306 It further resolved that “it will not recognize any changes to the 4 June
1967 lines, including with regard to Jerusalem, other than those agreed by the
parties through negotiations”.1307 All States are under an obligation to do the same.
5.43 Qatar respectfully submits that the Court should do the same here and
specifically state, in the dispositif, that all States are obliged to refrain from any
dealings with Israel that even imply recognition of the lawfulness of the situation
created by Israel’s occupation and discriminatory policies and practices.
B. ALL STATES MUST NOT AID OR ASSIST IN MAINTAINING THE SITUATION
CREATED BY ISRAEL’S OCCUPATION AND RELATED CONDUCT
5.44 Article 41(2) of ARSIWA, which reflects customary international law,1308
provides that “[n]o State shall … render aid or assistance in maintaining [the]
situation” created by a serious breach of a peremptory norm of general international
law.1309
1305 UNSC, Resolution 2334 (2016), On cessation of Israeli settlement activities in the Occupied
Palestinian Territory, including East Jerusalem, UN Doc. S/RES/2334 (23 Dec. 2016) (Dossier
No. 1372) (hereinafter, “UNSC Res. 2334”), para. 5.
1306 See Wall Advisory Opinion, para. 67.
1307 UNSC Res. 2334, para. 3 (emphasis added).
1308 Wall Advisory Opinion, para. 159. See also S. Olleson, THE IMPACT OF THE ILC’S ARTICLES
ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS (Preliminary Draft,
BIICL, 2007), pp. 237-241, available at https://tinyurl.com/ua9fv9mw; A. Gattini, “A Return
Ticket To ‘Communitarisme’, Please,” 13 EUROPEAN JOURNAL OF INTERNATIONAL LAW 1181
(2002), pp. 1185-1195.
1309 ARSIWA, art. 41(2).
342
5.45 The Court recognized this obligation in its Wall Advisory Opinion, holding
that “[a]ll States are under an obligation … not to render aid or assistance in
maintaining the situation created by [the] construction [of the wall]”.1310 Similarly,
the Court in its Namibia Advisory Opinion had held that “States Members of the
United Nations are under obligation … to refrain from any acts and in particular
any dealings with the Government of South Africa … lending support or assistance
to [the] presence and administration” of South Africa in Namibia.1311
5.46 The Court should take the same position in this case and hold that all States
are thus under an obligation not to render aid or assistance in maintaining the
situation created by Israel’s occupation of, and discriminatory practices and
policies in, the OPT.
5.47 As a result, States are prohibited from engaging in any military, economic,
or other forms of cooperation with the Government of Israel that directly aids or
assists it in maintaining its occupation and continuing its related conduct. This
includes, for example, preventing their goods from being exported to the illegal
Jewish Israeli settlements in the OPT and banning the import of goods from such
settlements, regardless of whether those exports and imports are military or merely
economic in nature. This also includes, as a further example, prohibiting and
preventing companies operating, domiciled, or headquartered within their
jurisdiction from operating in and engaging in any economic activity with Jewish
Israeli settlements.
5.48 States are also prohibited from engaging in any form of cooperation with
the Government of Israel that indirectly renders such aid or assistance. Put another
1310 Wall Advisory Opinion, para. 159.
1311 Namibia Advisory Opinion, para. 133(2).
343
way, States that engage in any form of cooperation with the State of Israel must
ensure that cooperation does not aid or assist in maintaining Israel’s occupation of
the OPT or its discriminatory practices and policies carried out therein. At a
minimum, this requires States to subject all of their dealings with Israel to enhanced
due diligence screening.1312
5.49 With respect to military cooperation with Israel in particular, Qatar notes
that the UN General Assembly has already called upon all Member States to refrain
from supplying Israel with and acquiring from Israel military equipment, and to
suspend any military assistance agreements with Israel.1313 In light of the heavily
militarized nature of the occupation, any form of military cooperation with Israel
necessarily renders aid or assistance in maintaining the situation created by Israel’s
illegal conduct. The Court should therefore hold in the dispositif that States must
refrain from selling or delivering to Israel weapons, ammunition, military vehicles,
military equipment, security equipment, paramilitary equipment, or any spare parts
for the aforementioned items. In the alternative, States are at the very least
prohibited from selling or delivering to Israel any form of military or security
equipment without a clear end-use undertaking that such equipment will neither be
used in the OPT nor deployed to facilitate Israel’s continued occupation.
1312 See, e.g., Human Rights Council, Report of the independent international fact-finding mission
to investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 117 (“The mission calls upon all
Member States to take appropriate measures to ensure that business enterprises domiciled in their
territory and/or under their jurisdiction, including those owned or controlled by them, that conduct
activities in or related to the settlements respect human rights throughout their operations.”).
1313 See UNGA, Resolution ES-9/1, The situation in the occupied Arab territories, UN Doc.
A/RES/ES-9/1 (5 Feb. 1982) (Dossier No. 1213), paras. 12(a)-(b).
344
5.50 As for economic cooperation with Israel, all States are under an obligation
to distinguish, in their economic dealings, between Israel and the OPT.1314 This is
consistent with the responsibility of all States to protect against human rights
abuses by third parties,1315 including businesses that “have, directly and indirectly,
enabled, facilitated and profited from the construction and growth of the
settlements”.1316
5.51 In that regard, the Human Rights Council in 2013 requested that the
OHCHR produce a database for business enterprises involved in activities which
“directly and indirectly, enabled, facilitated and profited from the construction and
growth of the Israeli settlements” and “raise particular human rights violations
concerns”.1317 The Council also requested that the database be updated
annually.1318 While this database is not public, the OHCHR is known to have
reached out to the States where the companies are domiciled to inform them about
the database and the activities the companies were allegedly engaged in and
1314 See UNSC Res. 2334, para. 5.
1315 See Human Rights Council, Guiding Principles on Business and Human Rights: Implementing
the United Nations “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31 (21 Mar.
2011), Annex, Guiding Principle 1.
1316 Human Rights Council, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/22/63 (7 Feb. 2013), para. 96.
1317 Ibid. The Database was mandated by Human Rights Council Resolution 31/36 (24 Mar. 2016)
and paragraph 96 of the report of the Independent International Fact-Finding defined the parameters
of the business activities to be included in the database.
1318 See Human Rights Council, Database of all business enterprises involved in the activities
detailed in paragraph 96 of the report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, UN Doc. A/HRC/37/39 (1 Feb. 2018), para. 1.
345
inviting their comments and observations.1319 Those States must therefore avoid
engaging in any dealings with the listed companies.1320
C. ALL STATES MUST COOPERATE TO BRING TO AN END
ISRAEL’S OCCUPATION AND RELATED CONDUCT
5.52 Article 41(1) of ARSIWA provides that “States shall cooperate to bring to
an end through lawful means any serious breach” by a State of a peremptory norm
of general international law.1321 As detailed above, Israel’s conduct in the OPT
breaches multiple peremptory norms. All States must therefore cooperate to bring
that conduct to an end.
5.53 In the Wall Advisory Opinion, the Court recognized a similar obligation
with respect to the Wall, holding: “It is also for all States … to see to it that any
impediment, resulting from the construction of the wall, to the exercise by the
Palestinian people of its right to self-determination is brought to an end”.1322 Along
the same lines, the Court in its Chagos Advisory Opinion made clear in the
dispositif that “all Member States are under an obligation to co-operate with the
1319 Ibid., para. 15.
1320 It is important to note that the list is not comprehensive and that “[t]he database does not cover
all corporate activity related to settlements, nor does it extend to all corporate activity in the
Occupied Palestinian Territory that may raise human rights concerns. In addition, while there may
be other types of entities engaged in significant corporate activity related to the settlements, only
those entities established as business enterprises are considered; non- governmental organizations,
charities, sports associations or federations, and other entities are therefore excluded from
consideration”. See Human Rights Council, Database of all business enterprises involved in the
activities detailed in paragraph 96 of the report of the independent international fact-finding
mission to investigate the implications of the Israeli settlements on the civil, political, economic,
social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory,
including East Jerusalem, UN Doc. A/HRC/37/39 (1 Feb. 2018), para. 6.
1321 ARSIWA, art. 41.
1322 Wall Advisory Opinion, para. 159.
346
United Nations in order to complete the decolonization of Mauritius”.1323 Qatar
respectfully submits that, in the present case, the Court should also affirm the
obligation of all States to cooperate to bring Israel’s occupation and related conduct
to an end in the dispositif of its advisory opinion.
5.54 According to the commentary to Article 41(1) of ARSIWA, the obligation
to cooperate entails “a joint and coordinated effort by all States to counteract the
effects of these breaches”.1324 With regards to the Palestine situation in particular,
the Human Rights Council has “[c]all[ed] upon all States … to cooperate further to
bring, through lawful means, an end to these serious breaches and a reversal of
Israel’s illegal policies and practices”.1325
5.55 The ILC has further noted that such joint and coordinated action is
particularly appropriate in response to a breach of the right to “self-determination”
and “basic principles of humanitarian law”.1326 It also observed that such
cooperative action is appropriate in response to conduct that violates the
peremptory norm against racial discrimination, citing the Apartheid
Convention.1327
1323 Chagos Advisory Opinion, para. 183(5).
1324 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2001 (Vol. II, Pt. 2),
Article 41 Commentary, para. 3.
1325 Human Rights Council, Resolution 49/28, Right of the Palestinian people to self-determination,
UN Doc. A/HRC/RES/49/28 (11 Apr. 2022), para. 7.
1326 See ILC, Draft Conclusions on identification and legal consequences of peremptory norms of
general international law (jus cogens), with commentaries, UN Doc. A/77/10 (2022), pp. 72-73.
1327 See ibid., p. 72 (note 246) (citing International Convention on the Suppression and Punishment
of the Crime of Apartheid (30 Nov. 1973), 1015 U.N.T.S. 243, art. VIII (“Any State Party to the
present Convention may call upon any competent organ of the United Nations to take such action
under the Charter of the United Nations as it considers appropriate for the prevention and
suppression of the crime of apartheid.”)).
347
5.56 In addition, the ILC has explained that it is not only measures under
institutionalized cooperation mechanisms that may be adopted. The obligation to
cooperate to bring to an end serious breaches of peremptory norms may also be
implemented through non-institutionalized cooperation, including through ad hoc
arrangements by a group of States acting together.1328
5.57 Given the gravity of the situation, the repetitive and ongoing breach by
Israel of multiple peremptory norms, and Israel’s recalcitrance, Qatar submits that
it would be helpful for the Court to further specify in its advisory opinion what
concrete actions such a joint and coordinated effort might entail. Such actions may
include, for example: expressly condemning Israel’s occupation and discriminatory
policies and practices, either unilaterally1329 or through international
organizations;1330 declaring Israeli ambassadors or diplomats personae non gratae;
cutting off scientific and cultural ties (as was recently called for by the African
Union in response to what it called “the Israeli colonialist and discriminatory
1328 See ILC, Draft Conclusions on identification and legal consequences of peremptory norms of
general international law (jus cogens), with commentaries, Adopted by the ILC at its seventy-third
session, in 2022, UN Doc. A/77/10 (2022), p. 75.
1329 See, e.g., Foreign, Commonwealth & Development Office, Press release: Israeli settlements:
statement by France, Germany, Italy, Spain and the UK (6 May 2021), available at
https://tinyurl.com/4xfcjw83.
1330 Aside from the United Nations Security Council and General Assembly Resolutions already
referred to in these submissions, attention is drawn to resolutions of other International
Organizations, such as the European Union, which have recognized that Israeli settlements are
illegal under international law. See The Diplomatic Service of the European Union, EU Positions
on the Middle East Peace Process (3 Aug. 2021), available at https://tinyurl.com/ywch4j8w (“The
EU considers that settlement building anywhere in the occupied Palestinian Territory, including
East Jerusalem, is illegal under international law, constitutes an obstacle to peace and threatens to
make a two-state solution impossible.”). The International Committee of the Red Cross also
reaffirmed the illegality of the settlements. See International Committee of the Red Cross,
Implementation of the Fourth Geneva Convention in the occupied Palestinian territories: history of
a multilateral process (1997-2001) (30 Sept. 2002), available at https://tinyurl.com/4j3z8mub,
Annex 1, para. 12 (“The participating High Contracting Parties call upon the Occupying Power to
fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory,
including East Jerusalem, and to refrain from perpetrating any violation of the Convention. They
reaffirm the illegality of the settlements in the said territories and of the extension thereof.”).
348
practices in the Occupied Palestinian Territories”1331); implementing boycotts of
Israeli goods;1332 implementing targeted sanctions against Israel, Israeli entities,
and Israeli government officials; and supporting resolutions in the United Nations
seeking to bring Israel’s occupation and related conduct to an end.
5.58 Directed measures flowing from Israel’s violation of the peremptory norm
against racial discrimination and apartheid should also be identified.
5.59 Notably, the obligation of all States to cooperate to end Israel’s violations
necessarily also entails the obligation to refrain from exercising their veto rights in
the decision-making of international organizations to prevent the adoption of
resolutions and decisions aimed at bringing Israel’s occupation and discriminatory
policies and practices to an end.1333 The ILC has explained:
The obligation of States to act collectively to bring to an end serious
breaches of peremptory norms of general international law (jus
cogens) has particular consequences for cooperation within the
organs of the United Nations and other international organizations.
1331 See W. Sawahel, “AU declaration on Israel’s observer status draws support,” University World
News (28 Feb. 2023), available at https://tinyurl.com/5bjxrbzj.
1332 Some countries that boycott trade with Israel are Lebanon (regarding the establishment of the
Israel Boycott Office, see Lebanon, Israel Boycott (23 June 1955); Lebanon, Decree n° 12562 (19
Apr. 1963)) and Iran (see Iran, Act on Unified Islamic Law on Israeli Boycotts (1992)). Other
countries like Ireland (see Ireland, Control of Economic Activity (Occupied Territories) Bill 2018,
(24 Jan. 2018), available at https://tinyurl.com/y4b8zst9) prohibits the importation of products from
the Israeli settlements in Palestine. Moreover, non-State actors, such as the Boycott and Divestment
Movement, a Palestinian-led movement, have also “urge[d] action to pressure Israel to comply with
international law”. See BDS, What is BDS? (last accessed: 12 July 2023), available at
https://tinyurl.com/ycxpmcsd. The movement uses boycotts, divestments, and sanctions as means
to achieve its goals in “solidarity with the Palestinian struggle for freedom, justice and equality”.
Ibid.
1333 See R. M. Essawy, “The Responsibility Not to Veto Revisited under the Theory of
‘Consequential Jus Cogens’,” 12 GLOBAL RESPONSIBILITY TO PROTECT 299 (2020), pp. 302-303.
The U.S. for instance has used its veto right to block several UNSC resolutions condemning Israel,
including Resolution S/2018/516 condemning Israeli violence against protestors during the “Great
March of Return” and Resolution S/2011/24 condemning Israeli settlements established since 1967
as illegal.
349
It means that, in the face of serious breaches of peremptory norms
of general international law (jus cogens), international organizations
should act, within their respective mandates and when permitted to
do so under international law, to bring to an end such breaches.
Thus, where an international organization has the discretion to act,
the obligation to cooperate imposes a duty on the members of that
international organization to act with a view to the organization
exercising that discretion in a manner to bring to an end the breach
of a peremptory norm of general international law (jus cogens).1334
5.60 Qatar respectfully submits that it would be appropriate for the Court to
confirm the collective responsibility of States in this regard, including the duty not
to act in any manner that shields Israel from its breaches of fundamental norms.
The universal applicability of peremptory norms means that there is no scope for a
State to escape its obligations by use of a veto; that would undermine the very
notion of the norm’s non-derogability.1335
D. ALL STATES MUST HELP PROTECT THE PALESTINIAN PEOPLE FROM
WAR CRIMES, ETHNIC CLEANSING, AND CRIMES AGAINST HUMANITY
5.61 All States also have the obligation to help protect the Palestinian people
from war crimes, ethnic cleansing, and crimes against humanity. This obligation
derives from the Responsibility to Protect, the parameters of which are set forth in
paragraphs 138 and 139 of the General Assembly’s 2005 World Summit Outcome
1334 See ILC, Draft conclusions on identification and legal consequences of peremptory norms of
general international law (jus cogens), with commentaries, UN Doc. A/77/10 (2022), pp. 75-76.
1335 As the International Law Commission has further explained: “The idea that peremptory norms
of general international law (jus cogens) are universally applicable, like that of their hierarchical
superiority, flows from nonderogability. The fact that a norm is non-derogable, by extension, means
that it is applicable to all, since States cannot derogate from it by creating their own special rules
that conflict with it. The universal application of peremptory norms of general international law (jus
cogens) is both a characteristic and a consequence of peremptory norms of general international law
(jus cogens).” Ibid., p. 23.
350
Document,1336 which reflect customary international law. Pursuant to this
responsibility, all States must take the necessary and appropriate measures to help
protect the Palestinian people from the perpetration of the aforementioned crimes
in the OPT. Such measures, as stated in the World Summit Outcome Document,
may include diplomatic, humanitarian, and other peaceful measures in accordance
with Chapters VI and VIII of the UN Charter, as well as coercive measures under
Chapter VII if necessary.1337
5.62 Qatar respectfully submits that the Court should expressly declare, in the
dispositif of its advisory opinion, that all States have this obligation to help protect
the Palestinian people from war crimes, ethnic cleansing, and crimes against
humanity.
5.63 The customary nature of this obligation is irrefutable. The General
Assembly affirmed it by adopting the 2005 World Summit Outcome Document by
consensus.1338 As the Secretary-General of the League of Arab States, Mr. Amr
Moussa, proclaimed following its adoption:
This is a commitment on the part of us all, States and regional and
international organizations alike. That is why the commitment of
the League of Arab States within this framework is a legal and
moral commitment.1339
1336 UNGA, Resolution 60/1, 2005 World Summit Outcome, UN Doc. A/RES/60/1 (24 Oct. 2005),
paras. 138-139. See also UNGA, Implementing the responsibility to protect, UN Doc. A/63/677 (12
Jan. 2009).
1337 See UNGA, Resolution 60/1, 2005 World Summit Outcome, UN Doc. A/RES/60/1 (24 Oct.
2005), para. 139.
1338 UNGA, Official Records of the 8th Plenary Meeting, UN Doc. A/60/PV.8 (16 Sept. 2005), p.
46.
1339 Ibid., p. 50 (emphasis added).
351
5.64 The Security Council reaffirmed the obligation in its Resolution 1674 on
the protection of civilians in armed conflict.1340 And the UN Secretary-General, in
his 2009 report Implementing the Responsibility to Protect, stated:
It should be underscored that the provisions of paragraphs 138 and
139 of the Summit Outcome are firmly anchored in well-established
principles of international law. Under conventional and customary
international law, States have obligations to prevent and punish
genocide, war crimes and crimes against humanity. Ethnic cleansing
is not a crime in its own right under international law, but acts of
ethnic cleansing may constitute one of the other three crimes.1341
5.65 The obligation of all States to help protect populations from war crimes,
ethnic cleansing, and crimes against humanity was applied in practice in the context
of the 2011 Libyan Civil War. Soon after armed conflict broke out, the Human
Rights Council adopted Resolution S-15/1, which reaffirmed that “all States have
an obligation to protect the rights to life, liberty and security of the person”.1342
Shortly thereafter, the Security Council adopted Resolution 1973, which authorized
“Member States that have notified the Secretary-General … to take all necessary
measures … to protect civilians and civilian populated areas under threat of attack
in the Libyan Arab Jamahiriya”.1343 As a result, under “Operation Unified
1340 UNSC, Resolution 1674 (2006), On protection of civilians in armed conflict, UN Doc.
S/RES/1674 (28 Apr. 2006), para. 4 (“Reaffirms the provisions of paragraphs 138 and 139 of the
2005 World Summit Outcome Document regarding the responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity”).
1341 UNGA, Implementing the responsibility to protect, UN Doc. A/63/677 (12 Jan. 2009), para. 3
(emphasis added).
1342 Human Rights Council, Resolution S-15/1, Situation of human rights in the Libyan Arab
Jamahiriya, UN Doc. A/HRC/RES/S-15/1 (3 Mar. 2011), Preamble.
1343 UNSC, Resolution 1973 (2011), On establishment of a ban on flights in the Libyan Arab
Jamahiriya airspace, UN Doc. S/RES/1973 (17 Mar. 2011), para. 4.
352
Protector”, a NATO-led alliance conducted air strikes against military targets that
threatened the civilian population.1344
5.66 The Court is thus respectfully requested to state in the dispositif of its
advisory opinion that all States have the obligation to help protect the Palestinian
population from war crimes, ethnic cleansing, and crimes against humanity. Such
a pronouncement would go a long way in providing the necessary guidance to
States, as well as the General Assembly, regarding their obligations with respect to
the protection of the Palestinian people.
E. ALL STATES MUST ENSURE ACCOUNTABILITY UNDER
INTERNATIONAL LAW FOR INTERNATIONAL CRIMES COMMITTED IN
THE CONTEXT OF ISRAEL’S OCCUPATION
5.67 All States have the obligation to ensure accountability under international
law for international crimes committed in the context of Israel’s occupation. As the
OPT Special Rapporteur recommended in her most recent report, all States should
[a]ct to ensure a thorough, independent and transparent
investigation of all violations of international human rights law and
international humanitarian law, including those amounting to
potential war crimes, crimes against humanity and the crime of
aggression, committed in the occupied Palestinian territory.1345
5.68 Many of the specific obligations on States to ensure criminal accountability
derive from conventional law.1346 Most prominently, pursuant to Article 146 of GC
1344 See NATO, “NATO and Libya (Archived)” (last updated: 9 Nov. 2015), available at
https://tinyurl.com/26x8pdzt.
1345 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 78(c).
1346 See, e.g., Geneva Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (12 August 1949), 75 U.N.T.S. 31, art. 49; Geneva Convention
(II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
353
IV—which the Court in its Wall Advisory Opinion affirmed “is applicable in the
Palestinian territories”1347—all States have the obligation to prosecute or extradite
any person who has committed a “grave breach” of that Convention.1348 Article
147 defines a “grave breach” of the Convention as a breach involving any of the
following acts, among others: wilful killing; torture or inhuman treatment; wilfully
causing great suffering or serious injury to body or health; unlawful deportation or
transfer or unlawful confinement of a protected person; or wilfully depriving a
protected person of the rights of fair and regular trial.1349
5.69 Consistent with this obligation, the UN Independent International
Commission of Inquiry on the Occupied Palestinian Territory, including East
Jerusalem, and Israel recommended in its 2022 report that
States Members of the United Nations uphold their obligations
under international law, including their extraterritorial human rights
obligations, and obligations under the common article 1 to the four
Geneva Conventions and articles 146, 147 and 148 of the Fourth
Geneva Convention, including by investigating and prosecuting
persons suspected of committing or otherwise aiding and abetting
or assisting in the commission or attempted commission of crimes
under international law in the Occupied Palestinian Territory.1350
Forces at Sea (12 August 1949), 75 U.N.T.S. 85, art. 50; Geneva Convention (III) Relative to the
Treatment of Prisoners of War (12 August 1949), 75 U.N.T.S. 135, art. 129; Fourth Geneva
Convention, art. 146; Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (10 Dec. 1984), 1465 U.N.T.S. 85 (hereinafter, “CAT”), art. 7;
Convention on the Prevention and Punishment of the Crime of Genocide (9 Dec. 1948), 78 U.N.T.S.
277 arts. VI, VII; Apartheid Convention, arts. IV, XI.
1347 Wall Advisory Opinion, para. 101.
1348 Fourth Geneva Convention, art. 146.
1349 Ibid., art. 147.
1350 UNGA, Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/77/328 (14 Sept. 2022),
para. 95.
354
5.70 Importantly, should a State wish not to prosecute a perpetrator of a “grave
breach” of the GC IV, it may choose instead to extradite them to another State that
is able and willing to prosecute them. By the same token, States should exercise
caution in agreeing to extradition requests made by Israel with respect to crimes
committed in the OPT, and such requests should generally be refused when they
relate to individuals facing criminal charges in Israel for activities related to
opposing the occupation. Indeed, Israel has a long history of harassing and
mistreating activists who oppose its policies.1351
5.71 Specific obligations on States to ensure criminal accountability can be
found in other conventional sources as well. For example, State Parties to the
CAT1352 have an obligation to enact legislation prohibiting all acts of torture and
providing appropriate punishment.1353 The Convention requires State Parties to
provide for territorial, active personality jurisdiction over torture, and passive
personality jurisdiction “if that State considers it appropriate”.1354 The CAT further
1351 For example, in 2016, two Palestinian human rights activists were arrested and faced charges
before an Israeli military tribunal related to their involvement in protests against restrictions on
movement placed by the Israeli military on Palestinians in Hebron, in the West Bank. The charges
were heavily condemned by Amnesty International, which “believe[d] that both Amro and al-Atrash
have been arrested solely for their peaceful exercise of their rights to freedom of expression and
assembly”. Amnesty International, Press Release: Israeli government must cease intimidation of
human rights defenders, protect them from attacks (12 Apr. 2016), available at
https://tinyurl.com/mr38pudx.
1352 As of 17 July 2023, 173 States are parties to the CAT. See UN Treaty Collection, “Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (last accessed:
17 July 2023), available at https://tinyurl.com/4m8fxakc.
1353 CAT, art. 4 (“1. Each State Party shall ensure that all acts of torture are offences under its
criminal law. The same shall apply to an attempt to commit torture and to an act by any person
which constitutes complicity or participation in torture. 2. Each State Party shall make these
offences punishable by appropriate penalties which take into account their grave nature.”).
1354 Ibid., art. 5(1) (Each State Party shall take such measures as may be necessary to establish its
jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or
aircraft registered in that State;
(b) When the alleged offender is a national of that State;
355
requires State Parties to take measures to establish universal jurisdiction over
persons suspected of torture, unless they decide to extradite the suspects.1355
5.72 Similarly, State Parties to the International Convention on the Suppression
and Punishment of the Crime of Apartheid1356 are under an obligation to adopt
legislation to “suppress as well as to prevent any encouragement of the crime of
apartheid and similar segregationist policies or their manifestations and to punish
persons guilty of that crime”.1357 The Convention also requires State Parties to
adopt legislation to prosecute persons responsible for apartheid “whether or not
such persons reside in the territory of the State in which the acts are committed or
are nationals of that State or of some other State or are stateless persons”.1358 The
Convention finally requires State Parties to further undertake “to grant extradition
in accordance with their legislation and with the treaties in force”.1359
5.73 In the same vein, State Parties to the International Convention for the
Protection of All Persons from Enforced Disappearance have an obligation to
criminalize, investigate, and bring those responsible for acts defined in article 2 of
(c) When the victim is a national of that State if that State considers it appropriate.).
1355 See ibid., art. 5(2) (“Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over such offences in cases where the alleged offender is present in any
territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States
mentioned in paragraph 1 of this article.”).
1356 As of 12 July 2023, 109 States are parties to the International Convention on the Suppression
and Punishment of the Crime of Apartheid. See UN Treaty Collection, “International Convention
on the Suppression and Punishment of the Crime of Apartheid” (last accessed: 12 July 2023),
available at https://tinyurl.com/74kbxxfh.
1357 Apartheid Convention, art. IV(a).
1358 Ibid., art. IV(b). See also Convention on the Suppression and Punishment of the Crime of
Apartheid, Introductory Note by Prof. J. Dugard, available at https://tinyurl.com/mu26mvae, p. 2
(“Instead it was left to States to enact legislation to enable them to prosecute apartheid criminals on
the basis of a form of universal jurisdiction. The Apartheid Convention allows State parties to
prosecute non-nationals for a crime committed in the territory of a non-State party where the
accused is physically within the jurisdiction of a State party”).
1359 Apartheid Convention, art. XI.
356
the convention, to justice.1360 State Parties must also take the “necessary measures
to establish [their] competence to exercise jurisdiction over the offence of enforced
disappearance”.1361 States on whose territory a person alleged to have committed
an offence of enforced disappearance is found are under an obligation to “submit
the case to [their] competent authorities for the purpose of prosecution”1362 unless
they decide to “extradite that person or surrender him or her to another State in
accordance with [their] international obligations or surrender him or her to an
international criminal tribunal whose jurisdiction [they] ha[ve] recognized”.1363
5.74 In addition to conventional obligations to prosecute or extradite
perpetrators of international crimes, all States have a permissive right under
customary international law to establish and exercise universal jurisdiction with
respect to international crimes.
5.75 As Jean-Marie Henckaerts, head of the ICRC’s project on customary
international humanitarian law, explains, the principle of universal jurisdiction
“has gradually been expanded to apply to all serious violations of humanitarian law
as a permissive rule”.1364
1360 International Convention for the Protection of All Persons from Enforced Disappearance (20
Dec. 2006), 2716 U.N.T.S. 3, arts. 3, 4, 6.
1361 Ibid., art. 9(1).
1362 Ibid., art. 11(1).
1363 Ibid.
1364 See also J. Henckaerts, “Customary International Humanitarian Law: A Response to US
Comments,” 89 INT'L. REV. RED CROSS 473 (2007), p. 476 (“But this does not mean that the
practice is not dense enough, as suggested, to demonstrate the existence of a customary rule, in
particular as we are dealing with a permissive rule. The principle of universal jurisdiction means
that war crimes are crimes under international law, like piracy, slavery and apartheid, and hence
that all states have an interest that they be prosecuted. This principle was first established in the
Geneva Convention as an obligation with respect to the serious violations (‘grave breaches’)
enumerated therein and was later confirmed in Additional Protocol I. It has gradually been
357
5.76 It is also the case with crimes against humanity.1365 In their joint separate
opinion to the Arrest Warrant Judgment, Judges Higgins, Kooijmans, and
Buergenthal explained that
The series of multilateral treaties with their special jurisdictional
provisions reflect a determination by the international community
that those engaged in war crimes, hijacking, hostage taking, torture
should not go unpunished. Although crimes against humanity are
not yet the object of a distinct convention, a comparable
international indignation at such acts is not to be doubted.
…
Great care has been taken when formulating … relevant treaty
provisions not to exclude other grounds of jurisdiction that may be
exercised on a voluntary basis.1366
expanded to apply to all serious violations of humanitarian law as a permissive rule.”) (emphasis
added).
1365 See, e.g., UNGA, Resolution 177 (II), Formulation of the principles recognized in the Charter
of the Nürnberg Tribunal and the judgment of the Tribunal, UN Doc. A/RES/177(II) (21 Nov.
1947); ILC, Report of the International Law Commission covering its Second Session (5 June – 29
July 1950), Official Records of the General Assembly, Fifth Session, Supplement No. 12 (A/1316),
in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1950 (Vol. II, Pt. 3), p. 376, principle VI
of the Nürnberg Principles (The Commission in 1950 produced the Principles of International Law
Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, which
stated that crimes against humanity were “punishable as crimes under international law”); ILC,
Draft Code of Offences against the Peace and Security of Mankind, in YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 1954 (Vol. II), art. 1; Statute of the International Criminal
Tribunal for the Former Yugoslavia, art. 5; Statute of the International Criminal Tribunal for
Rwanda, art. 3; ICTY, Prosecutor v. Anto Furundžija, Case No. IT-95-17/1, Judgment (10 Dec.
1998), para. 156 (“Furthermore, at the individual level, that is, that of criminal liability, it would
seem that one of the consequences of the jus cogens character bestowed by the international
community upon the prohibition of torture is that every State is entitled to investigate, prosecute
and punish or extradite individuals accused of torture, who are present in a territory under its
jurisdiction. … It has been held that international crimes being universally condemned wherever
they occur, every State has the right to prosecute and punish the authors of such crimes.”); ILC,
Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, UN
Doc. A/74/10 (2019), Article 3 Commentary, para 19.
1366 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Joint Separate
Opinion of Judges Higgins, Kooijmans and Buergenthal (14 Feb. 2002), para. 51 (emphasis added).
See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
358
5.77 The ILC Draft Articles on Prevention and Punishment of Crimes Against
Humanity seek to provide the blueprint “for what would become a Convention on
the Prevention and Punishment of Crimes against Humanity”.1367 However, the
ILC made clear that the Draft Articles “are without prejudice to existing customary
international law”.1368 Nor do the Draft Articles “address the consequences of the
prohibition [against the commission of crimes against humanity] having [a jus
cogens] status”.1369 Thus, while the Draft Articles envisage a conventional
obligation for State Parties to prosecute or extradite an alleged offender present on
their territory,1370 the Commentary explains that they “do[] not foreclose a State
from adopting, at any time, a national law relating to crimes against humanity, so
long as it is consistent with the State’s obligations under international law”.1371
States are thus strongly encouraged to exercise that right to fulfil their obligation
to ensure accountability for the perpetrators of these crimes.
5.78 It is finally worth noting that, in light of the ICC’s ongoing investigation
into the Situation in the State of Palestine, a perpetrator could potentially be
extradited to that Court. State Parties to the Rome Statute in fact have the obligation
to “cooperate fully with the Court in its investigation and prosecution of crimes
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para.
442.
1367 See ILC, Report of the International Law Commission on the work of its Sixty-fifth Session
(2013), Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 10
(A/68/10), in YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 2013 (Vol. II, Pt. 2), Annex
B, para. 3.
1368 ILC, Draft articles on Prevention and Punishment of Crimes Against Humanity, with
commentaries, UN Doc. A/74/10 (2019), General Commentary, para. 3. See also ibid., art. 2(3)
(“This draft article is without prejudice to any broader definition provided for in any international
instrument, in customary international law or in national law.”).
1369 Ibid., Preamble Commentary, para. 5.
1370 Ibid., art. 10.
1371 ILC, Draft articles on Prevention and Punishment of Crimes Against Humanity, with
commentaries, UN Doc. A/74/10 (2019), Article 1 Commentary, para. 3.
359
within the jurisdiction of the Court”,1372 which includes the obligation to comply
with requests for arrest and surrender.1373
5.79 Indeed, the current OPT Special Rapporteur Ms. Albanese specifically
recommended in her latest report that the international community “pursue
accountability for perpetrators through both ICC in its ongoing investigation into
the situation in Palestine, and universal jurisdiction mechanisms”.1374 Ms.
Albanese’s predecessor, Mr. Michael Lynk, similarly recommended in his final
report that the international community “[s]upport any references or applications
to the International Criminal Court and/or the International Court of Justice with
respect to the legal consequences of the practice of apartheid in the Occupied
Palestinian Territory”.1375
5.80 Qatar respectfully requests that the Court state in the dispositif of its
advisory opinion that all State Parties to international conventions with an
obligation to prosecute or extradite must comply with this obligation when the
crimes in question have been committed in the context of Israel’s occupation and
related conduct. Qatar further requests that the Court state that all States that have
conventional obligations to exercise universal jurisdiction over international crimes
comply with their obligations, and that States that do not have such obligations may
still establish and exercise universal jurisdiction over such crimes to ensure
accountability.
1372 Rome Statute, art. 86.
1373 Ibid., art. 89.
1374 UNGA, Report of Special Rapporteur Francesca Albanese on the situation of human rights in
the Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 78(c).
1375 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 58 (b).
360
III. Legal Consequences for the United Nations
5.81 Israel’s occupation of, and discriminatory practices and policies in, the OPT
have legal consequences not only for States, but also for the United Nations.
Indeed, the General Assembly’s Request in this case, unlike the request in the Wall
case, specifically asks the Court to opine on the “legal consequences that arise for
… the United Nations”.1376
5.82 In Qatar’s view, the law on the legal consequences for international
organizations arising from serious breaches by States of peremptory norms of
general international law may be deduced by analogy from the ILC’s Articles on
Responsibility of International Organizations (“ARIO”) and ARSIWA. As
explained above in Section II, Article 41 of ARSIWA provides that if a State
commits a serious breach of a peremptory norm, then all States are under the
obligations to cooperate to bring the breach to an end,1377 not to recognize as lawful
the situation created by the breach,1378 and not to render aid or assistance in
maintaining that situation.1379 Article 42 of ARIO similarly provides that if an
international organization commits a serious breach of a peremptory norm, then all
States and international organizations are under the same three obligations.1380 A
necessary corollary of these rules is that if a State commits a serious breach of a
peremptory norm, then all international organizations—most especially the United
Nations—are also under the same three obligations.
1376 UNGA Res. 77/247, para. 18(b).
1377 ARSIWA, art. 41(1).
1378 Ibid., art. 41(2).
1379 Ibid.
1380 ILC, Draft articles on the responsibility of international organizations, in YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 2011 (Vol. II, Pt. 2), art. 42.
361
5.83 That being the case, Israel’s occupation and related conduct give rise to
legal obligations on the United Nations not to recognize as lawful the situation
created by Israel’s occupation and related conduct (Section A); not to render aid or
assistance in maintaining that situation (Section B); and to cooperate to bring to an
end Israel’s occupation and related conduct (Section C).
A. THE UNITED NATIONS MUST NOT RECOGNIZE AS LAWFUL THE SITUATION
CREATED BY ISRAEL’S OCCUPATION AND RELATED CONDUCT
5.84 Like all States, the United Nations is under an obligation not to recognize
as lawful the situation created by Israel’s illegal occupation of the OPT and its
discriminatory practices and policies carried out therein.
5.85 This means, among other things, that all UN bodies are under an obligation
to “distinguish, in their relevant dealings, between the territory of the State of Israel
and the territories occupied since 1967”.1381 Accordingly, any references to Israel
in UN documents should encompass only the “territory of Israel itself”,1382 as
reflected in the 4 June 1967 lines. No UN body may expressly or impliedly
recognize the OPT as part of Israel.
B. THE UNITED NATIONS MUST NOT AID OR ASSIST IN MAINTAINING THE
SITUATION CREATED BY ISRAEL’S OCCUPATION AND RELATED CONDUCT
5.86 The United Nations is further under an obligation not to render aid or
assistance in maintaining the situation created by Israel’s occupation, settlement
and annexation of, and discriminatory practices and policies in, the OPT.
1381 UNSC Res. 2334, para. 5.
1382 Wall Advisory Opinion, para. 67.
362
5.87 In concrete terms, this means that no UN body may provide any funds to
maintaining the illegal situation in the OPT. Any funds going to Israel must be
subjected to appropriate due diligence to ensure that they do not have the direct or
indirect effect of rendering aid or assistance in maintaining the illegal situation in
the OPT.
C. THE UNITED NATIONS MUST COOPERATE TO BRING TO AN
END ISRAEL’S OCCUPATION AND RELATED CONDUCT
5.88 The United Nations, like all States, is also under an obligation to cooperate
to bring to an end Israel’s occupation of, and discriminatory practices and policies
in, the OPT. Qatar respectfully submits that in its advisory opinion the Court should
make clear that this is an obligation, not simply a recommendation.
5.89 In this respect, Qatar observes that in the Wall Advisory Opinion, the Court
held that “[t]he United Nations … should consider what further action is required
to bring to an end the illegal situation resulting from the construction of the wall
and the associated régime”.1383 This case, however, calls for a firmer stance, and
not just because the Court’s prior opinion fell on deaf ears. As stated above, in that
case, the request for the advisory opinion did not specifically ask about legal
consequences for the United Nations. The Court was therefore stepping beyond the
strict confines of the question asked of it. Here, by contrast, the Request specifically
asks the Court to identify the “legal consequences that arise for … the United
Nations”.1384 Consequently, in its advisory opinion, the Court can and should
clearly state that the United Nations is under an obligation to cooperate to bring
Israel’s occupation and discriminatory policies and practices to an end.
1383 Wall Advisory Opinion, para. 163(3)(E) (emphasis added).
1384 UNGA Res. 77/247, para. 18(b).
363
5.90 The United Nations has, of course, already adopted many measures to this
end, including a number of Security Council resolutions1385 and General Assembly
resolutions.1386 There is, however, more that it can do. Because Israel has not
complied with the Security Council resolutions calling on it to end the occupation,
the Council may, pursuant to Article 41 of the Charter, take other measures against
1385 See, e.g., UNSC Res. 2334 (2016), para. 4 (“Stresses that the cessation of all Israeli settlement
activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken
immediately to reverse the negative trends on the ground that are imperilling the two-State
solution.”); UNSC, Resolution 1397 (2002), On political settlement of the situation in the Middle
East, including the Palestinian question, UN Doc. S/RES/1397 (12 Mar. 2002), Preamble
(“Affirming a vision of a region where two States, Israel and Palestine, live side by side within
secure and recognized borders … Calls upon the Israeli and Palestinian sides and their leaders to
cooperate in the implementation of the Tenet work plan and Mitchell Report recommendations with
the aim of resuming negotiations on a political settlement.”); UNSC, Resolution 1435 (2002), On
cessation of all acts of violence and withdrawal of Israeli forces from Palestinian cities, UN Doc.
S/RES/1435 (24 Sept. 2002), Preamble and para. 3 (“Alarmed at the reoccupation of Palestinian
cities as well as the severe restrictions imposed on the freedom of movement of persons and goods,
and gravely concerned at the humanitarian crisis being faced by the Palestinian people … Demands
also the expeditious withdrawal of the Israeli occupying forces from Palestinian cities towards the
return to the positions held prior to September 2000.”).
1386 See, e.g., UNGA, Resolution 67/19, Status of Palestine in the United Nations, UN Doc.
A/RES/67/19 (29 Nov. 2012), paras. 2, 4, 6 (According Palestine non-member observer State status
in the United Nations, affirming its “determination to contribute to the achievement of the
inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle
East that ends the occupation that began in 1967” and urging “all States and the specialized agencies
and organizations of the United Nations system to continue to support and assist the Palestinian
people in the early realization of their right to self-determination, independence and freedom”.);
UNGA Res. 77/247, para. 6 (Demanding, inter alia, “that Israel, the occupying Power, cease all of
its settlement activities, the construction of the wall and any other measures aimed at altering the
character, status and demographic composition of the Occupied Palestinian Territory, including in
and around East Jerusalem, all of which, inter alia, gravely and detrimentally impact the human
rights of the Palestinian people, including their right to self-determination, and the prospects for
achieving without delay an end to the Israeli occupation that began in 1967 and a just, lasting and
comprehensive peace settlement between the Palestinian and Israeli sides”.); UNGA, Resolution
77/208, The right of the Palestinian people to self-determination, UN Doc. A/RES/77/208 (15 Dec.
2022) (Dossier No. 381), para. 2 (Urging, inter alia, “all States and the specialized agencies and
organizations of the United Nations system to continue to support and assist the Palestinian people
in the early realization of their right to self-determination”.); UNGA, Resolution 77/187, Permanent
sovereignty of the Palestinian people in the Occupied Palestinian Territory, including East
Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources,
UN Doc. A/RES/77/187 (14 Dec. 2022) (Dossier No. 272), para. 5 (“Calls upon Israel, the
occupying Power, to comply strictly with its obligations under international law, including
international humanitarian law, and to cease immediately and completely all policies and measures
aimed at the alteration of the character and status of the Occupied Palestinian Territory, including
East Jerusalem.”).
364
Israel to “give effect to its decisions”, including “complete or partial interruption
of economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations”.1387 Further,
pursuant to Article 42, the Council may take action “by air, sea, or land forces”,
including “demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations”.1388 And pursuant to Article 5, the
General Assembly could, upon the recommendation of the Security Council,
suspend Israel from the exercise of the rights and privileges of membership in the
United Nations.1389
5.91 Of course, just because the United Nations can do certain things does not
mean that it should do them in fulfilment of its obligation to cooperate with States
in bringing an end to Israel’s occupation. But considering the fact that the Israeli
regime in the OPT constitutes apartheid, the United Nations should seriously
consider at least taking measures similar to those that it took with respect to
apartheid in South Africa and South West Africa (Namibia). In particular, the
Security Council should seriously consider imposing a mandatory arms embargo
on Israel.1390 And the General Assembly should seriously consider requesting
Member States to refrain from supplying petroleum to Israel,1391 to break off
diplomatic relations with Israel, to close their ports to all vessels flying the Israeli
flag, to prohibit their vessels from entering Israeli ports, to boycott Israeli goods,
to boycott Israeli sports teams, to refrain from exporting goods to Israel, and to
1387 UN Charter, art. 41.
1388 Ibid.
1389 Ibid., art. 5.
1390 See UNSC, Resolution 181 (1963), On the situation of South Africa, UN Doc. S/RES/181(1963)
(7 Aug. 1963); UNSC, Resolution 418 (1977), On establishment of an arms embargo against South
Africa, UN Doc. S/RES/418 (4 Nov. 1977).
1391 See UNGA, Resolution 1899 (XVIII), Question of South West Africa, UN Doc. A/RES/1899
(XVIII) (13 Nov. 1963), para. 7(b).
365
establish a special committee to keep the discriminatory policies and practices of
Israel under review when the Assembly is not in session.1392 All of these measures
were taken against South Africa, and there is no reason why they should not also
be taken against Israel.
5.92 Furthermore, the United Nations should also consider taking measures to
support the exercise of criminal jurisdiction over serious international crimes
committed in the context of Israel’s occupation of the OPT, and its discriminatory
practices and policies carried out therein. This support could be directed towards
States that exercise jurisdiction over such crimes within their national jurisdictions
but could also take the form of direct action by the United Nations itself.
5.93 For example, the United Nations could establish an investigatory
mechanism to collect evidence against suspected perpetrators of the
aforementioned crimes for possible use in future criminal proceedings. This would
not be without precedent. In 2016, the General Assembly established the
International, Impartial and Independent Mechanism to Assist in the Investigation
and Prosecution of Persons Responsible for the Most Serious Crimes under
International Law Committed in the Syrian Arab Republic since March 2011.1393
Similarly, in 2017, the Security Council established the Investigative Team to
Promote Accountability for Crimes Committed by Da’esh/ISIL.1394 And in 2018,
the Human Rights Council established the Independent Investigative Mechanism
1392 See UNGA, Resolution 1761 (XVII), The policies of apartheid of the Government of the
Republic of South Africa, UN Doc. A/RES/1761(XVII) (6 Nov. 1962), paras. 4-5.
1393 UNGA, Resolution 71/248, International, Impartial and Independent Mechanism to Assist in
the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under
International Law Committed in the Syrian Arab Republic since March 2011, UN Doc.
A/RES/71/248 (21 Dec. 2016).
1394 UNSC, Resolution 2379 (2017), On establishment of an Investigative Team to Support Domestic
Efforts to Hold the Islamic State in Iraq and the Levant Accountable for Its Actions in Iraq, UN
Doc. S/RES/2379 (21 Sept. 2017).
366
for Myanmar.1395 The United Nations should establish a similar mechanism for the
OPT. Such mechanism could operate either in support of or independent from the
ICC investigation noted above.
5.94 In addition, the United Nations should consider re-establishing the Special
Committee against Apartheid, as recommended by Special Rapporteur Michael
Lynk, “to investigate any and all practices of systematic discrimination and
oppression purportedly amounting to apartheid anywhere in the world, including
the Occupied Palestinian Territory”.1396 Alternatively, acting under Article IX of
the International Convention on the Suppression and Punishment of the Crime of
Apartheid, the Chairman of the Commission on Human Rights can appoint a
committee of State Parties to consider the periodic reports submitted by other States
Parties on the legislative, judicial, administrative, or other measures that they have
adopted and that give effect to the provisions of the Convention insofar as Israel’s
treatment of Palestinians is concerned.
5.95 In addition, the United Nations could also act to establish an international
criminal tribunal to prosecute the relevant crimes, following the examples of the
International Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda. Or it could instead work with the Government of
Israel to establish a hybrid court or tribunal, like the Special Court for Sierra Leone,
the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal
for Lebanon. Again, any such mechanism could operate either in support of or
independent from the ICC investigation.
1395 Human Rights Council, Resolution 39/2, Situation of human rights of Rohingya Muslims and
other minorities in Myanmar, UN Doc. A/HRC/RES/39/2 (27 Sept. 2018).
1396 See Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human
rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022),
para. 59.
367
5.96 Finally, given the mounting violence and daily death toll which have
reached unprecedented levels,1397 the Security Council should consider
establishing a peacekeeping mission for Palestine. This too would not be
unprecedented in the region. After Israel’s invasion of Lebanon in 1978, the
Security Council established a UN interim force “for the purpose of confirming the
withdrawal of Israeli forces, restoring international peace and security and assisting
the Government of Lebanon in ensuring the return of its effective authority in the
area”.1398 A similar mission should be deployed in the present context in order to
ensure, among other things, that Israel’s withdrawal occurs in an orderly fashion
without generating hostilities with Palestinians, and that peace be maintained
between the Palestinian people and Israel. This would be in line with the
recommendation by Special Rapporteur Albanese that states “[d]eploy an
international protective presence to constrain the violence routinely used in the
occupied Palestinian territory and protect the Palestinian population”.1399
***
5.97 Although this discussion was limited to the legal consequences incumbent
particularly on the United Nations, Qatar respectfully submits that the Court should
make clear that these obligations are not only applicable to the United Nations but
also to all other international organizations, within their respective spheres of
influence and institutional authority.
1397 See supra Chapter 2, § IV.
1398 UNSC, Resolution 425 (1978), On establishment of a UN interim force for Southern Lebanon,
UN Doc. S/RES/425 (19 Mar. 1978), para. 3.
1399 See UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 78(b).
369
CHAPTER 6
JURISDICTION AND DISCRETION
6.98 The Court has jurisdiction to give the requested advisory opinion pursuant
to Article 65(1) of its Statute, which provides: “The Court may give an advisory
opinion on any legal question at the request of whatever body may be authorized
by or in accordance with the Charter of the United Nations to make such a
request.”1400 Article 96(1) of the Charter expressly authorizes the General
Assembly to request advisory opinions “on any legal question”.1401 The questions
asked are plainly legal because they request the assessment of Israel’s policies and
practices in the OPT by reference to international law.1402
6.99 While the Court has discretion whether or not to respond to a request for an
advisory opinion, it has consistently held that its answer to such a request, “in
principle, should not be refused”.1403 The Court has further repeatedly affirmed that
“only ‘compelling reasons’ may lead the Court to refuse its opinion in response to
a request falling within its jurisdiction”.1404 Indeed, the present Court has never
exercised its discretionary power to decline to respond to a request for an advisory
opinion.1405
1400 Statute of the International Court of Justice, art. 65(1).
1401 UN Charter, art. 96(1).
1402 See Chagos Advisory Opinion, para. 58; Wall Advisory Opinion, para. 37.
1403 Chagos Advisory Opinion, para. 65; Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403
(hereinafter, “Kosovo Advisory Opinion”), para. 30; Wall Advisory Opinion, para. 44.
1404 Chagos Advisory Opinion, para. 65. See also Kosovo Advisory Opinion, para. 30; Wall
Advisory Opinion, para. 44.
1405 The Permanent Court of International Justice has done so on only one occasion. See Status of
Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5.
370
6.100 There are no compelling reasons in this case for the Court to decline to
respond to the General Assembly’s request. To the contrary, the opinion would be
of great assistance to the General Assembly and the United Nations more broadly
in the exercise of their functions. The General Assembly has repeatedly recognized
that the United Nations has “a permanent responsibility towards the question of
Palestine until the question is resolved in all its aspects in a satisfactory manner in
accordance with international legitimacy”.1406 The questions posed by the General
Assembly’s request are thus of particularly acute concern to the United Nations.
6.101 The Court recognized the point in the Wall Advisory Opinion:
Given the powers and responsibilities of the United Nations in
questions relating to international peace and security, it is the
Court’s view that the construction of the wall must be deemed to be
directly of concern to the United Nations. The responsibility of the
United Nations in this matter also has its origin in the Mandate and
the Partition Resolution concerning Palestine …. This responsibility
has been described by the General Assembly as “a permanent
responsibility towards the question of Palestine until the question is
resolved in all its aspects in a satisfactory manner in accordance
with international legitimacy” (General Assembly resolution
57/107 of 3 December 2002). Within the institutional framework of
the Organization, this responsibility has been manifested by the
adoption of many Security Council and General Assembly
resolutions, and by the creation of several subsidiary bodies
1406 UNGA, Resolution 57/107, Committee on the Exercise of the Inalienable Rights of the
Palestinian People, UN Doc. A/RES/57/107 (3 Dec. 2002) (Dossier No. 417), Preamble; UNGA,
Resolution 58/18, Committee on the Exercise of the Inalienable Rights of the Palestinian People,
UN Doc. A/RES/58/18 (3 Dec. 2003) (Dossier No. 418), Preamble; UNGA, Resolution 74/10,
Committee on the Exercise of the Inalienable Rights of the Palestinian People, UN Doc.
A/RES/74/10 (3 Dec. 2019) (Dossier No. 434), Preamble; UNGA, Resolution 75/20, Committee on
the Exercise of the Inalienable Rights of the Palestinian People, UN Doc. A/RES/75/20 (2 Dec.
2020) (Dossier No. 435) (hereinafter, “UNGA Res. 75/20”), Preamble; UNGA, Resolution 77/22,
Committee on the Exercise of the Inalienable Rights of the Palestinian People, UN Doc.
A/RES/77/22 (30 Nov. 2022) (Dossier No. 436) (hereinafter, “UNGA Res. 77/22”), Preamble.
371
specifically established to assist in the realization of the inalienable
rights of the Palestinian people.1407
6.102 The same analysis applies with even greater force to these proceedings.
Israel’s occupation, settlement and annexation of the OPT as well as its
discriminatory policies and practices—of which the construction of the Wall is only
one facet—pose a grave threat to the United Nations’ fulfilment of its “permanent
responsibility towards the question of Palestine”.1408 Indeed, following the Court’s
Wall Advisory Opinion, the General Assembly, Security Council and other UN
bodies have continued to take action with respect to Israel’s occupation of and
discriminatory policies and practices in the OPT.1409
6.103 The Court should not be dissuaded from responding to the General
Assembly’s request by any nominal concerns that rendering the advisory opinion
might impede a negotiated political solution to Israel’s occupation of OPT. Indeed,
the Court previously rejected that argument in the Wall Advisory Opinion.1410 The
Court explained: “It is not clear … what influence the Court’s opinion might have
on those negotiations …”.1411 If anything, the Court’s opinion would likely
1407 Wall Advisory Opinion, para. 49. For the link between the current situation and the League of
Nations Mandate for Palestine and UNGA Partition Resolution, see Prof. Rashid Khalidi, Settler
Colonialism in Palestine (1917-1967) (20 July 2023), pp. 45-46. QWS, Vol. II, Annex 1; Prof. Avi
Shlaim, The Diplomacy of the Israeli-Palestinian Conflict (1967-2023) (20 July 2023). QWS, Vol.
II, Annex 2.
1408 The General Assembly has repeatedly reaffirmed this responsibility. See, e.g., UNGA Res.
77/22; UNGA Res. 75/20; UNGA Res. 74/10.
1409 See, e.g., UNGA Res. 77/247; UNSC Res. 2334 (2016); ECOSOC, Resolution 2021/4,
Economic and social repercussions of the Israeli occupation on the living conditions of the
Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and the Arab
population in the occupied Syrian Golan, UN Doc. E/RES/2021/4 (14 Sept. 2020) (Dossier No.
121).
1410 Wall Advisory Opinion, paras. 51-53.
1411 Ibid., para. 53.
372
contribute to, rather than impede, the resolution of the matter at hand. As the Court
stated then:
The Court is aware that, no matter what might be its conclusions in
any opinion it might give, they would have relevance for the
continuing debate on the matter in the General Assembly and would
present an additional element in the negotiations on the matter.1412
6.104 For these reasons, the Court concluded in that case that it “cannot regard
this factor as a compelling reason to decline to exercise its jurisdiction”.1413
6.105 There is no reason to reach a different conclusion here. Given the wholesale
lack of progress in the negotiations, as thoroughly described in the annexed report
by Professor Avi Shlaim,1414 it is especially important that the Court fulfil the
responsibility the General Assembly has most recently entrusted to it. As the Court
has elsewhere held: “[I]n situations in which political considerations are prominent
it may be particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable with respect
to the matter under debate ….”1415 Clear and definitive answers to the questions
asked will provide critical guidance to the United Nations and to the international
community as a whole about the legal principles that must guide the future
resolution of these issues.
1412 Ibid., para. 51 (citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996, p. 226 (hereinafter, “Nuclear Weapons Advisory Opinion”), para. 17).
1413 Ibid., para. 53.
1414 See Prof. Avi Shlaim, The Diplomacy of the Israeli-Palestinian Conflict (1967-2023) (20 July
2023). QWS, Vol. II, Annex 2.
1415 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, p. 73, para. 33; Nuclear Weapons Advisory Opinion, para. 13.
373
6.106 For the foregoing reasons, the Court has the jurisdiction to give the
requested advisory opinion and there is no reason it should decline to do so.
375
CHAPTER 7
CONCLUSIONS
7.1 For the reasons set out in this Written Statement, the State of Qatar
respectfully submits the following conclusions to the Court:
I. The Court has jurisdiction to give the Advisory Opinion requested by the
General Assembly in its Resolution 77/247 of 30 December 2022, and
there are no grounds for declining to exercise such jurisdiction.
II. The Court should declare that:
A. Israel has no territorial title over the Palestinian territory occupied
since 1967, including East Jerusalem and the Gaza strip, and it has no
legal justification to remain an Occupying Power of that territory;
B. Israel’s prolonged occupation, including its ongoing blockade on the
Gaza strip, constitutes a continued violation of the right of the
Palestinian people to self-determination;
C. Israel’s de jure annexation of East Jerusalem violates international
law, is null, void and of no legal effect;
D. Israel’s de facto annexation of Area C of the West Bank violates
international law, is null, void and of no legal effect;
E. The establishment and facilitation by Israel of Israeli settlements in the
West Bank and East Jerusalem violate international law and are of no
legal effect on the status of the areas concerned;
F. Israeli’s practice of exclusion and displacement of Palestinians from
the Occupied Palestinian Territory, with the aim or result of altering
its demographic composition, violates international law;
G. Israel’s fragmentation of, and restriction on movement in, the West
Bank, including East Jerusalem, violate international law;
H. Israel’s practice of systematic violence and excessive use of force
against Palestinians in the Occupied Palestinian Territory, including
its tolerance for settlers’ violence, violate international law;
376
I. Israel’s illegal occupation entails numerous violations of civil,
political, cultural, economic and social rights of Palestinians, and of
international humanitarian law; and
J. Israel’s discriminatory policies and practices affecting Palestinians in
the Occupied Palestinian Territories constitute, as a whole, an illegal
regime of apartheid.
III. The Court should declare that certain legal consequences arise out of the
above numerous and egregious violations of international law, as follows:
A. For Israel:
1. Israel is under an obligation to cease immediately its occupation
and discriminatory policies and practices and all its ongoing
violations of human rights law and international humanitarian law;
2. Israel is under an obligation to offer appropriate assurances and
guarantees of non-repetition; and
3. Israel is under an obligation to make full reparation for the injury
caused by its occupation and discriminatory policies and practices.
B. For all other States:
1. All States must not recognize as lawful the situation created by
Israel’s occupation and related conduct;
2. All States must not aid or assist, directly or indirectly, in
maintaining the situation created by Israel’s occupation and related
conduct;
3. All States must cooperate to bring to an end Israel’s occupation
and related conduct;
4. All States must help protect the Palestinian people from war
crimes, ethnic cleansing, and crimes against humanity; and
5. All States must ensure accountability under international law for
international crimes committed in the Occupied Palestinian
Territory, including by investigating, prosecuting or extraditing
any person who has committed or is suspected of committing
international crimes therein, consistent with their treaty obligations
377
and their permissive right to establish and exercise universal
jurisdiction over international crimes.
C. For the United Nations:
1. The United Nations must not recognize as lawful the situation
created by Israel’s occupation and related conduct;
2. The United Nations must not aid or assist, directly or indirectly, in
maintaining the situation created by Israel’s occupation and related
conduct; and
3. The United Nations must cooperate to bring to an end Israel’s
occupation and related conduct.
379
381
VOLUME I
FIGURES
Figure 2.1 The cumulative effect of Israel’s measures
regarding land in the OPT on the West Bank
following p. 20
Figure 2.2 Photograph: A view of the Israeli settlement
of Ofra in the central West Bank, with the
Palestinian town of Ein Yabrud on the range
behind it
p. 24
Figure 2.3 Photograph: Swimming Pool in the Israeli
settlement of Ma’ale Adumim
p. 28
Figure 2.4 Photograph: Jewish settlers who live in the
Rachel’s Tomb compound enjoy their
playground located next to a section of
Israel’s Wall, separating them from the
West Bank city of Bethlehem in the
background
p. 29
Figure 2.5 Photograph: A woman walks past clothes
left to dry in Burj al-Barajneh refugee camp
in Beirut, Lebanon
p. 32
Figure 2.6 Photograph: Palestinian Motasem Farrah
and a friend tear down Farrah's home in an
Arab neighbourhood in East Jerusalem
p. 45
Figure 2.7 Photograph: An Israeli army excavator
demolishes a building in the Palestinian
village of Sur Baher
p. 46
Figure 2.8 Photograph: A Palestinian boy picks up
papers and books from the site of a school
that was demolished by the Israeli
authorities in the village of Jabbet al-Dhib,
east of Bethlehem in the occupied West
Bank
p. 48
Figure 2.9 Photograph: Nora Ghaith-Sub Laban is
comforted by her son after her family’s
eviction from their home to make way for
Israeli settlers in Jerusalem’s Old City
p. 51
Figure 2.10 Photograph: Palestinians wait at the
Qalandia checkpoint along the Wall
separating East Jerusalem from the rest of
the West Bank
p. 55
Figure 2.11 Israel’s Physical Obstacles to Movement in
the West Bank
following p. 58
Figure 2.12 Israel’s Segregated Road System following p. 60
Figure 2.13 Access Restrictions in Settlement Area of
Hebron City
following p. 62
Figure 2.14 Photograph: An Israeli settler walks past a
Palestinian house with verandas covered in
meshing along the Israeli-controlled
Shuhada street in the West Bank city of
Hebron
p. 62
Figure 2.15 The Gaza Buffer Zones following p. 70
Figure 2.16 Photograph: Israelis gathered on a hilltop
outside the town of Sderot on Monday to
watch the bombardment of Gaza
p. 78
Figure 2.17 Photograph: Palestinians walk next to the
remains of a destroyed 15 story building
after being hit by Israeli airstrikes on Gaza
City
p. 81
Figure 2.18 Photograph: Ibrahim Al-Masri, 10, sits for a
portrait in his bedroom that was damaged
when an airstrike destroyed the
neighbouring building
p. 82
Figure 2.19 Photograph: The five children who were
killed in the attack on Al-Falluja cemetery
p. 84
Figure 2.20 Photograph: Palestinians inspect their
destroyed homes following overnight Israeli
airstrikes in the town of Beit Hanoun,
northern Gaza Strip
p. 88
Figure 2.21 Photograph: Palestinians collect human
remains from a classroom inside Jabaliya
school after it was hit by shelling
p. 90
Figure 2.22 Photograph: Smoke and fire rise from the
explosion at the Gaza power plant
p. 92
Figure 2.23 Photograph: Israeli snipers at the Great
March of Return
p. 95
Figure 2.24 Photomontage: Palestinians shot in the legs
during demonstrations at the Gaza strip’s
border with Israel pose as they await
treatment at a Gaza City clinic run by MSF
(Doctors Without Borders)
p. 96
Figure 2.25 Photograph: Palestinian nurse Razan Najjar
at the protest site before she was killed by
an Israeli sniper
p. 98
Figure 2.26 Photograph: Khairi and Rana al-Hallaq, the
parents of an autistic Palestinian man fatally
shot by an Israeli police officer, with a
photo of their son
p. 104
Figure 2.27 Photograph: Muhammad Al-Tamimi p. 108
Figure 2.28 Photograph: The destroyed streets of the
Jenin refugee camp following Israel’s July
2023 operation
p. 116
Figure 2.29 CCTV footage still: Abdul Rahman Hardan
before and after he was shot by Israeli
forces
p. 117
Figure 2.30 Video footage still: Israeli soldier Elor
Azaria moments before shooting the
wounded Abd al-Fatah a-Sharif in the head
p. 120
Figure 2.31 Photograph: Yousef Abu Jazar, 15, believed
to have been killed by Israeli forces in April
2018
p. 122
Figure 2.32 Photograph: An aerial view shows vehicles
torched by Israeli settlers in an attack on
Huwara
p. 127
Figure 2.33 Photograph: Israeli forces detain Palestinian
Fevzi El-Junidi, 14, following clashes in the
West Bank city Hebron
p. 134
Figure 2.34 Photograph: Ahed Tamimi, in handcuffs
and prison uniform, being escorted into an
Israeli military court
p. 137
Figure 2.35 Photograph: Israeli Government Press
Office aerial picture of the Mughrabi
Quarter in Jerusalem’s Old City by the
Western Wall and the Al-Aqsa mosque
compound following the Six Day War
p. 145
Figure 2.36 Map: The Old City of Jerusalem and its
Quarters
p. 146
Figure 2.37 Photograph: Shireen Abu Akleh p. 167
Figure 2.38 Photograph: The building housing the
offices of the Associated Press and other
media in Gaza City collapses after it was hit
by an Israeli airstrike
p. 171
Figure 3.1 Survey of Israel, GovMap following p. 190
Figure 4.1 Comparison between Map of Drobles Plan
Settlement Blocks and Oslo Accords Areas
following p. 318
LIST OF ANNEXES
VOLUME II
EXPERT REPORTS
Annex 1
Annex 2
Prof. Rashid Khalidi, Settler Colonialism in Palestine (1917-
1967) (20 July 2023)
Prof. Avi Shlaim, The Diplomacy of the Israeli-Palestinian
Conflict (1967-2023) (20 July 2023)
Written statement of Qatar