Report of the Special Rapporteur on the situation of human rights in the OPT- Human Rights Council – (A/HRC/53/59)

August 28, 2023

Summary
In the present report, submitted pursuant to Commission on Human Rights resolution 1993/2 A and Human Rights Council resolution 5/1, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, finds that arbitrary and deliberate ill-treatment is inflicted upon Palestinians not only through unlawful practices in detention but also as a carceral continuum comprised of techniques of large-scale confinement – physical, bureaucratic and digital – beyond detention. These violations may amount to international crimes prosecutable under the Rome Statute of the International
Criminal Court and universal jurisdiction. The occupation by Israel has been a tool of settler colonial conquest also through intensified methods of confinement against an entire people who – as any people would – continuously rebel against their prison wardens.

VII. Conclusions
94. Under Israeli occupation, generations of Palestinians have endured widespread and systematic arbitrary deprivation of liberty, often for the simplest acts of life. Since 1967, over 800,000 Palestinians, including children, have been detained on the basis of an array of authoritarian rules enacted, enforced and adjudicated by the Israeli military. Palestinians are often presumed guilty without evidence, arrested without warrants, and detained without charge or trial. Physical and psychological abuse are distressingly common. Without condoning crimes that Palestinians have committed during decades of illegal occupation, most criminal convictions of Palestinians have been the result of a litany of violations of international law, including due process violations, that taint the legitimacy of the administration of justice by the occupying Power. Many such convictions concern legitimate expressions of civil and political rights, and the right to resist an illegal foreign occupier.

95. By depriving Palestinians of the protections afforded by international law, the occupation reduces them to a “de-civilianized” population, stripped of their status of protected persons and fundamental rights. Treating the Palestinians as a collective, incarcerable threat erodes their protection as civilians under international law, deprives them of their fundamental freedoms, and expropriates their agency and ability to unite, self-govern and develop as a polity. Any Palestinian opposing this regime, from peaceful protesters to farmers trying to cultivate their lands, is perceived as a menace and considered detainable. This forces Palestinians into a permanent state of vulnerability.

96. Mass incarceration reinforces the power imbalance between the Palestinians and Israeli institutions and settlers, facilitating settler-colonial encroachment. By shifting from the security of the occupying Power to the security of the occupation itself, Israel has disguised as “security” the permanent control over the territory it occupies and tries to annex. Law enforcement has served as a tool to ensure the imposition of the occupation and racial domination by Israel and the furtherance of its settler-colonial project. This has entrenched segregation, subjugation, fragmentation and, ultimately, the dispossession of Palestinian lands and forced displacement of Palestinians. Intended primarily to secure the establishment and expansion of colonies, this system suffocates Palestinian life and undermines the collective existence of Palestinians.

97. Through an array of physical, bureaucratic and digital mechanisms, the Israeli regime has turned the occupied territory into a panopticon, where Palestinians are constantly surveilled and disciplined. Within this system, typical of settler-colonial regimes, widespread and systematic arbitrary deprivation of liberty and cruel and degrading treatment on a large scale appear to form part of the State policy pursued by Israel of domination of the Palestinians as a people, which is enforced also through beyond-prison confinement.

98. The widespread and systematic arbitrariness of the occupation’s carceral regime is yet another manifestation of the inherently illegal occupation and strengthens the need to hold Israel accountable, while bringing the occupation to an end. It is critical that the international community recognize that the unlawfulness of the occupation cannot be remedied, or humanized, by reforming some of its most brutal consequences. Under the Charter of the United Nations and international law, particularly concerning State responsibility, third States have a duty not to contribute or condone the settler-colonial apartheid imposed by Israel, which criminalizes Palestinians for (re)claiming or refusing to forsake their collective right to exist as a people, and act to realize all conditions that would allow the Palestinian people to realize their rights, including their inalienable right to self-determination.

VIII. Recommendations
99. The Special Rapporteur recommends that the Israeli system of arbitrarily depriving Palestinians of their liberty in the occupied Palestinian territory, emanating from an irredeemably unlawful occupation, be abolished tout court, because of its inherent incompatibility with international law.

100. To achieve this goal, third States should:

(a) Use diplomatic, political and economic measures afforded by the Charter of the United Nations without discrimination;

(b) Not recognize as lawful, aid or assist the occupation by Israel, given its commission of internationally wrongful acts and possible international crimes, and call for the cessation of those acts and for reparations;

(c) Prosecute the commission of international crimes alleged in the present report under universal jurisdiction.

101. The State of Israel, as a first step towards long-term remedies for decades of arbitrary deprivation of liberty of the Palestinian people, should take the following measures:

(a) Declare a moratorium on the detention of minors;

(b) Release all Palestinian detainees, especially children, detained for acts devoid of offensiveness under international law;

(c) Release all withheld bodies of deceased Palestinians and guarantee dignified burials.

102. The Palestinian authorities should fully comply with international norms on the deprivation of liberty. This includes:

(a) Ceasing any form of arbitrary detention, as well as torture and ill-treatment of detainees, ensuring both accountability and reparations to the victims.This also includes the release of the bodies of deceased Israelis withheld in Gaza;

(b) Interrupting security arrangements that may lead to violating fundamental rights and freedoms under international law;

(c) Ensuring effective oversight and accountability measures, including by strategically engaging local human rights organizations.

103. Independent and thorough investigations into the possible commission of international crimes arising from the systematic arbitrary detention of Palestinians should be opened, including through universal jurisdiction. In particular, the Prosecutor of the International Criminal Court should examine, as part of the investigation into the situation in Palestine, the possible commission of the international crimes of:

(a) Willful deprivation of protected persons’ right to fair and regular trial;

(b) Widespread and institutionalized use of torture and cruel, inhuman or degrading treatment or punishment;

(c) Unlawful deportation or transfer or unlawful confinement;

(d) Imprisonment or severe arbitrary deprivation of liberty in violation of fundamental rules of international law;

(e) Persecution against an identifiable group or collectivity by reason of its identity;

(f) Apartheid.

104. The likelihood of the above offences being cumulatively committed as part of a policy of “de-Palestinization” of the occupied territory and of a plan to incrementally annex it must be urgently investigated; such a plan would threaten the right of an entire people to exist as a national group, challenging the very foundations of the international legal order.