Sp. Rapporteur on situation of human rights in OPT (Falk) presents annual report to GA Third Cttee – Press release (excerpts)

Third Committee

24^th & 25^th Meetings (AM & PM)

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UN EXPERT ADDRESS:  PALESTINIAN TERRITORIES

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Background

The Third Committee (Social, Humanitarian and Cultural) met today to continue its consideration of the promotion and protection of human rights, focusing on human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, as well as human rights situations and reports of special rapporteurs and representatives.

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A report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, transmitted through the United Nations Secretary-General (document A/64/328), devotes particular attention to the situation after the Israeli military’s “Operation Cast Lead”.  The report cites from three studies that seem to confirm suspicions of war crimes associated with Cast Lead.  One study was led by John Dugard, the former Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, as an undertaking of the Arab League.  A second is a report by Amnesty International, and a third is a report by the International Committee of the Red Cross (ICRC).  Those reports were bolstered by testimony from 30 Israeli Defense Forces soldiers who took part in the Operation, and received only perfunctory denials by the Government of Israel.  In addition, the reports also reached a subsidiary conclusion that Hamas tactics, although on a far more restricted basis, also constituted violations of the laws of war.

The Special Rapporteur also discusses a major report conducted by the United Nations Board of Inquiry relating to damage done to United Nations facilities and personnel as a result of Operation Cast Lead.  A series of conclusions relating to Israeli responsibility and obligations were revealed in the executive summary of the full report.  By order of the United Nations Secretary-General, the full report has not been released, but its main conclusion is that Israel, without sufficient military justification and with deliberate intention, did serious harm to several United Nations facilities and caused major casualties on the part of those taking shelter in United Nations buildings and schools.

Citing the ICRC report, the Special Rapporteur says that six months after a ceasefire, restrictions on imports are making it impossible for Gazans to rebuild their lives.  The Israeli blockade prevents reconstruction, keeps the vital water and sewage disposal system in unsafe condition, and extends the health crisis described in the prior report of the Special Rapporteur (document A/63/326).   Israel takes the position that only humanitarian goods will be allowed to enter Gaza, and that is strictly interpreted to mean subsistence needs.

The prohibition placed upon exports also has led to the complete collapse of industrial and agricultural exports that had provided some material security for a significant part of the population, the report says.  It would be inadequate to return to the status quo prior to Operation Cast Lead.  Only a complete termination of the blockade, which would allow imports and exports at May 2007 levels, would be acceptable.  A side-effect of the continuing blockade is to encourage Gazan reliance on tunnels into Egypt to obtain essential supplies, giving rise to black-market activities and to severe safety hazards.  It has been reported that, in 2009 alone, 39 persons have died as a result of tunnel accidents, either from tunnel collapse or suffocation due to fuel leakages.

The report recalls that the Free Gaza Movement sought to send a ship, Spirit of Humanity, containing humanitarian supplies to Gaza as a symbolic expression by peace activists.  The ship was stopped and boarded in international waters, which constitutes an unlawful operation.  The passengers were arrested for various periods up to several days, including former American congresswoman and Green Party presidential candidate, Cynthia McKinney. 

The report also discusses the issue of Israeli settlements.  Recent discussions of a freeze on settlements have been made as political steps and not with reference to Palestinian rights under international humanitarian law.  From a legal perspective, acknowledging the relevance of Palestinian rights under law means that any bilateral understandings between the United States and Israel, such as the Bush/Sharon exchange of official letters on 14 April 2004, assuring Israel that the large settlement blocs will be incorporated into the future borders of the Israeli State, are completely without legal value.

The report ends with recommendations that the General Assembly request an advisory opinion from the International Court of Justice on the obligations and duties of Member States to cooperate with the Organization and its representatives; that other countries should be encouraged to use national means, including their courts, to implementing international criminal law as pertains to the Occupied Palestinian Territory; that Israeli respect for international law and Palestinian rights should henceforth be an integral element in future peace negotiations; and that consideration should be given to imposing limits on the supply of arms to the parties to the Israel-Palestine conflict.

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Statement by Special Rapporteur on Palestinian Territories

RICHARD FALK, Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, recalled that the Special Rapporteur of the mandate had been expelled from Israel on 14 December 2008 and, despite formal efforts to discuss future visits to the Occupied Palestinian Territory, Israel had ignored all such approaches, without explanation.

His report (document A/64/328) of 25 August had been submitted to the General Assembly and took particular note of Israel’s continued unlawful non‑cooperation with the work of the mandate-holder, he said.  Along similar lines, Israel had denied entry and cooperation with the Human Rights Council Fact Finding Mission, headed by Judge Richard Goldstone, and such behaviour both set an unfortunate precedent for the Council’s relations with a United Nations Member State, and interfered with the work of the mandate.  It was recommended that the Assembly or the Council request clarity on the consequences of such behaviour by referring the issue to the International Court of Justice.

Describing his report, which covered the December 2008 to July 2009 period, he said it focused on issues of the Gaza crisis, the accountability gap, the International Court of Justice Advisory Opinion on the Israeli security wall, settlement expansion, Palestinian self-determination and gaps in international humanitarian law.

In addition, he said the Goldstone Report, released on 15 September, was particularly significant in relation to the mandate on the protection of human rights in occupied Gaza.  That Report challenged the United Nations, as never before, to implement fully-documented findings on the commission of war crimes, by both Israel and Hamas.  It also had proposed steps that looked towards accountability, either via the Security Council monitoring domestic proceedings, via the International Criminal Court, or recourse to universal jurisdiction.  If allowed to go forward, such developments would be a “major achievement” for proponents of the rule of law in relation to Israel’s impunity vis-à-vis administration of the occupied Palestinian territories.

On the Gaza crisis, he said the overall situation continued to deteriorate in a manner that disclosed grave breaches of the Fourth Geneva Convention and of international human rights law, which had implications under international criminal law.  Due to the persistence of the blockade, insufficient basic necessities had reached the population and health conditions had worsened.

On the issue of accountability, he said there had been various authoritative reports that, together, confirmed allegations of war crimes.  Also, there had been civil-society initiatives, like boycotts of cultural events and contract cancellations, and other similar Governmental actions, including a recent decision by the British Government to cancel contracts for delivery of spare parts to the Israeli navy, based on objections to the way in which Israel had conducted recent military operations.

The fifth anniversary of the Advisory Opinion on the Israeli security wall, on 9 July, drew attention to the fact that, despite the near unanimity of the Court that the wall was unlawful and should be dismantled, Israel continued its construction.   Israel’s defiance of the Court’s ruling was a serious violation of its obligations as a United Nations Member State.  The United Nations’ failure to make more of an effort to implement such a clear conclusion of international law further showed that Palestinian rights were not being respected, and that Israel enjoyed a situation of de facto impunity.  Continued Palestinian non-violent demonstrations at wall-construction sites had been met with excessive force by Israeli security forces.

Turning to settlement expansion, he said that, despite calls for a freeze, reports indicated that expansion continued in East Jerusalem and the West Bank.  A freeze, even if agreed upon, did not deal with the underlying illegality of the settlements, as set out in article 49(6) of the Fourth Geneva Convention.

On Palestinian self-determination, he said that inalienable right, thwarted by Israeli occupation of Palestinian territories, was enshrined in Article 1 of both international human-rights covenants.  It had been widely assumed that the exercise of that right would be brought about through bilateral negotiations and reinforced by the United States and the Quartet.  It was of the utmost urgency to work towards a peaceful solution and an end to Israeli occupation.

Taking note of two contradictory developments, he said a main negative development had been Israel’s unwillingness to endorse the international consensus on a sovereign Palestinian State, which would comprise the West Bank, Gaza, and East Jerusalem as its capital.  The inability on the Palestinian side to achieve unified representation seemed to be a precondition for meaningful peace negotiations.

He said positive developments included clear formulations on the importance of progress on the issue of self-determination, on the basis of an end to Israeli occupation and establishment of Palestinian statehood.  Sentiments expressed by the United States President on 4 June — regarding the “intolerable” situation for the Palestinian people — were similarly reiterated in the Security Council on 11 May and the Quartet on 26 June.  Security Council resolution 1860 (2009) called for urgent efforts to achieve comprehensive peace, based on the vision of two democratic States living side-by-side in peace with secure, recognized borders.

Continuing, he said the Israel’s occupation of Palestinian territories and military operations had revealed three gaps in international humanitarian law that merited attention, including denial to their civilians’ right to depart from combat zones, notably for inhabitants of Gaza during “Operation Cast Lead”.  Second, the denial of internationally-donated reconstruction aid to repair war damage in Gaza, due to maintenance of the blockade, could be treated as an instance of collective punishment, as it raised distinct post-combat issues not explicitly addressed by international humanitarian law.  Also, as a result of the prolonged occupation and mobility restrictions, “anguishing” family fragmentation had added to Palestinian suffering.  They were unacceptable under international human rights law.

Against that backdrop, he recommended that the General Assembly request an Advisory Opinion on the obligations of United Nations Member States to cooperate with the Organization.  Also, States should be encouraged to use national means, including courts, to fulfil their obligations under the Fourth Geneva Convention.  Respect for international law -– and all Palestinian legal rights -– should be, henceforth, integral to future peace negotiations.  The unlawfulness of Israeli settlements should be confirmed and steps taken to move beyond the freeze in the direction of dismantlement.  Consideration should be given to requesting the ICRC to study and make recommendations on the special problems arising from prolonged occupation.  Finally, he urged that the General Assembly implement the Goldstone Report’s recommendations as a matter of its highest priority.

Question Time

The Permanent Observer of Palestine thanked Mr. Falk for his report.  He shared the sentiment reflected in the recent resolution from the Human Rights Council, which condemned Israel’s obstructionist policies against the investigations of both Richard Goldstone and Mr. Falk, among others.  This obstruction by Israel served neither the cause of justice nor the United Nations search for the protection of human rights. 

In relation to this report, he assured the Committee that large numbers of delegations would do everything they could to implement the recommendations, until impunity was ended.  Israel could not be above international law.  It had to be treated like every other country.  It was the responsibility of everyone to bring to justice those criminals who had killed Palestinians in the Gaza Strip and elsewhere.  He wished the Special Rapporteur success and assured him of his delegation’s full cooperation. 

The United States representative said that, since taking office, President Obama had made clear his abiding commitment to ensure stability in the Middle East, which included two States living side by side in peace.  Her delegation regretted that Mr. Falk’s report referred only to violations by Israel.  The United States continued to urge a balanced focus on violations and abuses in all territories.  Guided by its commitment to the universal application of such laws, it took violations of allegations of human rights and humanitarian law seriously.  However, this commitment could not be understood to establish moral equivalence between a democratic Israel and Hamas, which responded to Israel’s withdrawal from Gaza by launching terrorist attacks. 

She noted that Israel had received at least 100 complaints of abuse in Gaza and had already investigated several of them.  On other hand, Hamas was a terrorist group that had seized control of Gaza and had no institutions to deal with these violations.  She requested that the Palestinian Authority carry out its own investigation into the violations of international law by Hamas.  Her delegation had serious reservations about the Special Rapporteur’s recommendation, including that anybody request an opinion from the International Court of Justice on Israel’s refusal to cooperate, among others.  These were neither aimed nor calculated to contribute to accountability by all sides to the conflict.  She urged all Member States to conduct a genuine search for peace in the Middle East.

Iran’s representative expressed his country’s appreciation to Mr. Falk for the current report.  Although the report covered some gross violations in the Occupied Palestinian Territories, including war crimes committed during “Operation Cast Lead”, other violations remained to be addressed.  The recent violations must be seen in the context of more than 60 years of war crimes.  Indeed, they could not be considered as a single case, especially since 1.5 million people were trapped in despair and since women and children were killed.  Considering the report, he wondered why it contained no recommendations for the referral of this regime to the appropriate bodies, who could examine its accountability for the commission of war crimes. 

Sweden’s delegate, speaking on behalf of the European Union, expressed deep concern on the deteriorating human rights and humanitarian situation in the Occupied Territories.  Her delegation believed all parties were obliged to respond to all violations of such rights.  To that end, what practical measures could the United Nations take to improve cooperation with Israel and the Palestinian Authority to improve the human rights situation?

Egypt’s delegation said she had been heartened by the situation reflected in the Special Rapporteur’s report, not in terms of the violations, but in terms of the breadth of his consideration of the human rights situation.  She agreed with Sweden’s question:  How could the international community better influence the situation, particularly through a roadmap that could fully implement all resolutions that had been adopted, but not acted on in the Occupied Palestinian Territories?  How could the international community respond to this selectivity towards different armed conflicts?  How would Mr. Falk respond?

The representative of the Maldives said that, as a firm believer in the principles of the United Nations Charter, his delegation was disheartened by the continued suffering of the Palestinian people.  It also supported the right of Israel to live in its own homeland.  He sought more clarity on how the Special Rapporteur thought the United Nations human rights bodies could better respond to violations of human rights in the area.  Regarding women and children, could such a perspective be incorporated in the work of the Special Rapporteur?

Syria’s delegate saluted the courage of the Special Rapporteur, at a time when human rights were being so selectively addressed.  Given the accusations in his report, as well as the Goldstone report, she said there seemed to be no will on the part of the international community to push Israel to comply with its obligations under intentional law.  She particularly focused on other States who said they were championing human rights in places in Myanmar and the Democratic People’s Republic of Korea, but ignored allegations of such violations in the Occupied Palestinian Territories.  To this end, she thanked the Special Rapporteur for his recommendations, but wondered how they could be implemented and a just, lasting solution be found.

Responding, Mr. FALK noted that all three of today’s Special Rapporteurs had faced the same problems of non-cooperation from the country they were tasked with assessing.  He believed that it was the responsibility of the international community, as well as the General Assembly, to take this non-cooperation seriously and to address it in a non-political manner.  Israel should receive the same focus that Myanmar and the Democratic People’s Republic of Korea did.  Moreover, it was in the interest of peace that some sort of openness and dialogue prevailed in the consideration of these mandates.  It was the commitment of these Special Rapporteurs to pursue their mandates in an independent manner and with an overriding commitment to truth, as they attempted to convey the human rights situation to the relevant authorities. 

He said the overriding issue was, really, that in 40 years — since 1967 — the international community had still not acted to call into account a country that was neglecting its responsibility under international law.  Thus, there were two interconnected issues:  achieving justice for these victims; and ending the impunity of the State responsible for them.

In response to the comment of his own Government, the United States, he said it was all very well to speak abstractly about a commitment to peace.  But, there was an ongoing commitment that had been obtained for the years of the occupation.  He saw no interest on the part of the United States, in its very important role in relation to this conflict, to seek compliance and accountability, the failure of which had produced an ordeal of suffering for the Palestinian people.  He believed that calling on the International Court of Justice to mandate and require cooperation on the part of a Member State was a constructive step, particularly in the absence of repeated failures to achieve this cooperation by voluntary means and by efforts of persuasion.  How else could one make such a mandate, which required access to the Occupied Territories, effective?

He appreciated the attention given by Iran’s delegation to the long history of the occupation.  Indeed “Operation Cast Lead” should be considered as part of a history of excessive use of force and reliance on the use of collective punishment.  It was long past time that such human rights violations were passed by with merely rhetorical reflections.  The time for practical engagement by the international community had certainly arrived. 

He underlined the call by the Swedish delegation for all parties to work on this issue.  The most immediate practical step possible was to take seriously the recommendations of the Goldstone report, which was an objective report by highly respected authorities and provided a clear basis on which to challenge impunity.  If it was ignored, it would send a very unfortunate message to the Palestinian people and Israel, suggesting that international law was only important when it coincided with the geopolitical concerns of world’s most powerful countries. 

He also believed that the situation of prolonged occupation called for distinct attention.  When does an occupation that goes on for so long without heeding the framework of humanitarian law, become a threat itself to international peace and security?

He thanked Syria and the Maldives for their stress on these issues.  He also welcomed the focus on women and children, particularly in light of the denial of their right to become refugees.  That had almost never happened in the history of modern warfare.  Further, while the number of casualties had received attention, not enough attention had been paid to the psychological harm to these children.  This closing off of any escape route from a combat zone deserved particular attention.  That concern was also aggravated by the fact that an occupying Power had special responsibilities, in that regard. 

In closing, he emphasized that his report, as well as the Goldstone report, required specific actions to be taken.  If they were, it would reinforce the credibility of the United Nations.  If they were not, it would confirm that the United Nations could not work effectively when there were significant political obstacles to action.

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For information media • not an official record