APRODEV – CIDSE – EMHRN recommendations for the 2014 ENP Progress Report for Israel

International Human Rights Law (IHRL), International Humanitarian Law (IHL), Israel / OPT, Statement

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Following the European External Action Service (EEAS) call for contributions for the European Neighbourhood Policy (ENP) Progress Reports covering 2014 (hereinafter the 2014 Progress Report), APRODEV, CIDSE and the EMHRN would like to draw the attention of the EEAS to the following 5 points:

1.         Address Israel’s actions in the Occupied Palestinian Territory (OPT) under chapter 2 dealing with shared values

 The undersigned organisations welcome the fact that the 2013 ENP Progress Report devotes a section to Israel’s responsibilities in the OPT and explicitly refers to Israel’s “responsibilities as an occupying power, notably, with regard to the proportionate use of force, human rights and international law”. We further welcome the strengthened use of human rights language in this section. However, as in the past, this chapter appears at the end of the Progress Report and is separated from Chapter 2 where issues relating to the joint objective “to work together to promote the shared values of democracy, rule of law and respect for human rights and international humanitarian law (IHL)” are addressed – as detailed in the EU-Israel Action Plan. Israel has both human rights and IHL obligations towards the occupied Palestinian population. In order to adequately reflect the full range of its legal obligations, this section should thus be incorporated under the second chapter of the Progress Report.

 2.         Include an assessment of Israel’s compliance with IHL obligations

 The EU Guidelines on Promoting Compliance with IHL underline its applicability during occupation stating “whenever relevant, the EU should include an assessment of the IHL situation in its reports on a given country or conflict”.

While welcoming the introduction of the new section ‘Israel in the OPT’, and the reference to Israel’s responsibilities as an occupying power, the undersigned organisations note with concern that the 2013 ENP Progress Report does not actually evaluate Israel’s compliance with IHL.  A thorough assessment of Israel’s compliance with IHL is crucial, since it is the principal legal framework which defines the rights of protected persons and the responsibilities of the occupying power in a situation of occupation. This examination is especially relevant given that IHL and international human rights law (IHRL) apply as complementary frameworks, and in certain instances, a more specific, detailed or protective IHL rule may supersede IHRL as lex specialis. The undersigned organizations thus recommend that the 2014 Progress Report include the following:

Demolitions in the OPT: Besides placing property rights “under particular strain” (as stated in the 2011, 2012 and 2013 Progress Reports), destruction of private property is a clear violation of Art. 53  of the Fourth Geneva Convention (GCIV) (see also Art. 46, Hague Regulations).[1] Home demolitions were also recognized as illegal by the Foreign Affairs Council in the Council conclusions of December 2009.

Demolitions also put the protected Palestinian population at risk of, or actually cause forcible transfer (a violation of GC IV, Art. 49). Both unlawful destruction of private property and the unlawful transfer of protected persons are grave breaches of the Geneva Conventions,[2] entailing specific responsibilities for third states under international law (see GCIV, Arts 146 and 147).

Besides demolitions, other unlawful practices are contributing to forcible transfer, and we call on the EU to address them as such. The revocation of Palestinians’ Jerusalem residency, the planned transfer of Bedouin communities from the Jerusalem periphery, and evictions have been recognized by the UN Secretary-General (UN Doc. A/67/372, par. 55) as resulting in forcible transfer.

Similarly the closure of the Gaza Strip is itself illegal under IHL. The ICRC and UN officials at the highest level have classified the closure as collective punishment, in contravention of Article 33 of GCIV.

The undersigned organisations welcome the fact that the 2013 report, in addition to referring to settlements as an obstacle to peace, also underlines their illegality under international law.  The EU should further specify that settlements are a violation of Article 49 of the Fourth Geneva Convention, and that extensive appropriation of property not justified by genuine military necessity and carried out unlawfully and wantonly also amounts to a grave breach of the Fourth Geneva Convention (Art. 147).

IHL/IHRL violations during military operations: Several human rights NGOs, as well as the UN High Commissioner for Human Rights (UNHCHR), ICRC and UNRWA, have referred to numerous examples of potential violations of IHL and IHRL, including suspected war crimes by Israeli forces during Israel’s 51-day military operation on the Gaza Strip and during its extensive military operation in the West Bank (codenamed Operation Brother’s Keeper). Such alleged violations, including indiscriminate attacks on civilians, the disproportionate use of force, the deliberate targeting of civilians and civilian objects and the use of collective punishment, should be addressed in the next ENP Progress report in terms of IHL and IHRL.[3]

3.    Adopt specific priority actions related to Israel’s obligations as an occupying power

The undersigned organisations welcome the EU’s specific recommendation towards Israel to ensure respect for international law and human rights in the OPT, including intensifying efforts to curb settler violence and minimising the use of administrative detention without trial. These statements are an important step in promoting Israel’s respect for its obligations as an occupying power, and we encourage a follow-up assessment of the implementation of these recommendations.

In addition, the EU should identify specific actions related to Israel’s obligations to conduct independent, transparent, impartial, effective and prompt investigations into alleged violations of IHL, IHRL, and international criminal law (ICL) and to prosecute those responsible for violations, to ensure access to justice and remedies for Palestinian victims, and to cease ongoing violations of IHL, IHRL and ICL in the OPT.

4.    Report on all relevant deep democracy benchmarks, including the rule of law

The undersigned organisations welcome the fact that the 2013 ENP Progress Report refers to the need to “increase the transparency and public accountability of the security services” as recommended by the second part of the Turkel Commission report.  We further welcome the EU’s reference to the low level of investigations into complaints of torture and other ill-treatment. This statement is a positive step to ensuring a more comprehensive assessment of the rule of law in Israel, one of the EU’s “Deep Democracy Benchmarks” as outlined in the 2011 EEAS and European Commission joint communication entitled “A new response to a changing Neighbourhood”. The undersigned organisations, however, regret that no concrete recommendations were formulated to address the rule of law in Israel.

As in previous years, 2014 saw systematic and widespread violations of international law in Israel and the OPT (a number of which are outlined above or in the submissions of Palestinian and Israeli NGOs highlighted at the end of this submission). These violations are accompanied by the continued erosion of adherence to the rule of law. This comes in the form of a lack of investigations in accordance with international standards into alleged IHL, IHRL and ICL violations committed by Israel’s military forces in the OPT; the failure to prosecute those responsible for those offences; total impunity for torture offences; legal, administrative, monetary and physical restrictions on access to justice and remedies[4]; court decisions failing to adhere to or uphold protections provided under international law, and lack of enforcement of court decisions.

More than a year and a half after its publication, Israel has failed to implement the recommendations of the Turkel Committee Report and to address the severe structural flaws in its existing investigatory mechanisms. This lack of implementation has prompted leading Israeli human rights organizations, B’Tselem and Yesh Din, to conclude on 4 September 2014 that Israeli authorities are unwilling to investigate human rights violations committed by security forces against Palestinians.  It should be noted however, that implementation of the recommendations set out in the second Turkel report would represent a step towards compliance with international standards but would not be sufficient to ensuring Israel’s full compliance with international standards of investigation, prosecution and sentencing.

Apart from ongoing structural issues, the next report should address Israel’s failure to meet the EU’s other deep democracy benchmarks, including freedom of association, expression and assembly.  The major military escalations of 2014 placed mounting pressure on the rights of the Palestinian Arab citizens of Israel[5] including the Bedouin communities, who through wide-scale arrests and punitive measures faced unnecessary restrictions on their freedom of association, expression and assembly, while also facing incitement and continued discriminatory legislation, including in the field of land, housing and planning rights. Meanwhile NGOs in Israel faced increasing obstacles to the conduct of their work, particularly given the threat of pending legislation to impose high taxes on foreign government grants.

The abovementioned issues should be examined in the 2014 Progress Report.

5. Stress that the continued development of the EU’s bilateral relations with Israel should be based on the “shared values” of both parties

The EU should further remind Israel that the continued development of bilateral relations must be based on the shared values of both parties, including democracy, respect for human rights, rule of law and international humanitarian law, as confirmed in the EU’s 2009 statement following the 9th EU-Israel Association Council.

The abovementioned issues, including a comprehensive assessment of Israel’s compliance with IHRL, IHL, and ICL in the OPT, should additionally be addressed in the upcoming EU-Israel Informal Human Rights Working Group meeting in accordance with the EU’s Guidelines on Promotion of Compliance with IHL.

In addition to these points, APRODEV, CIDSE and the EMHRN would like to draw attention to the following contributions from Israeli and Palestinian NGOs:

Al-Haq Submission to the EU on its 2014 ENP Progress Report on Israel.Adalah-The Legal Center for Arab Minority Rights in Israel input to the ENP Progress Report on Israel.

Joint Adalah, Al Mezan and PHR-I ENP submission on torture, ill-treatment and accountability.

[1] The exception to this prohibition, i.e. “destruction is not rendered absolutely necessary by military operations” (GC IV, Art. 53) cannot be invoked to justify demolitions conducted on administrative or punitive grounds, which account for practically all demolitions in the OPT.

[2] Unlawful destruction of private property and the unlawful transfer of protected persons also constitute war crimes according to the Rome Statute of the International Criminal Court (Art. 8(2)(a)(iv) & (vii)).

[3] For more information on the alleged IHL and IHRL violations committed during these military operations see here, here, here and here.

[4] For a legal analysis of the obstacles for Palestinians in seeking Civil Remedies for Damages before Israeli Courts, see here.

[5] For more information about arrests, punitive measures and racial incitement against Palestinian Arab citizens of Israel, see here, here and here.