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International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory

Fax: +41 22 928 9003 | E-mail: ffmsettlements@ohchr.org

Submission

Name: The Israeli Committee Against House Demolitions (ICAHD) Contact details: Mr. Itay Epshtain, Co-Director, +972-54-2623306, itay@icahd.org Agree to be contacted by the Mission; Agree to make submission public Date: October 2 2012

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STATEMENT TO THE INTERNATIONAL FACT-FINDING MISSION ON ISRAELI SETTLEMENTS IN THE OCCUPIED PALESTINIAN TERRITORY OCTOBER 2012

This project is funded by the United Nations Development Programme

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The Israeli Committee Against House Demolitions (ICAHD) is a human rights and peace organization established in 1997 to end Israels Occupation over the Palestinians. ICAHD takes as its main focus, as its vehicle for resistance, Israels policy of demolishing Palestinian homes in the Occupied Palestinian Territory and within Israel proper. ICAHD was awarded ECOSOC Special Consultative Status in 2010. Published by the Israeli Committee Against House Demolitions (ICAHD) PO Box 2030 Jerusalem 91020 Israel +972 2 624-5560 info@icahd.org | www.icahd.org The contents of this publication are the sole responsibility of the Israeli Committee Against House Demolitions and can in no way be taken to reflect the views of the United Nations Development Programme. Author: Itay Epshtain, LL.M.

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Contents
I. EXECUTIVE SUMMARY II. APPLICABLE LEGAL ORDER III. PLANNING REGIME IV. ISRAELI POLICIES AND PRACTICES IN EAST JERUSALEM V. ISRAELI POLICIES AND PRACTICES IN AREA C VI. THE NORMATIVE NATURE OF PROLONGED OCCUPATION VII. ERGA OMNES RIGHT TO SELF-DETERMINATION 5 7 9 10 11 14 17

VIII. ISRAELI POLICIES AND PRACTICES AND IMPLICATIONS IN INTERNATIONAL CRIMINAL LAW 20 IX. RECOMMENDATIONS 22

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I. Executive Summary
1. ICAHD submits the following information for consideration by the International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory (OPT), pursuant to Human Rights Council Resolution 19/17. This submission focuses on Israels protracted failure to comply with fundamental principles of rule of law and human rights obligations related to (i) its occupation of the Palestinian territory, (ii) repercussions of the Israeli occupation for the Palestinian people stemming from illegal settlement expansion, and (iii) Israels responsibility to respect, protect and fulfill Palestinians human rights, in accordance with international law and standards. 2. The Palestinian population in the OPT, including occupied and illegally annexed East Jerusalem, continues to endure violence, displacement, dispossession and deprivation as a result of prolonged Israeli occupation, in most cases in violation of their rights under international human rights law (IHRL), and international humanitarian law (IHL). In the West Bank, including East Jerusalem, demolitions are a major cause of the destruction of property (including residential and livelihoodrelated structures) and displacement. In 2011, a record year of displacement, a total of 622 Palestinian structures were demolished by Israeli authorities. Of these, 36% (222) were family homes; the remainder were livelihood-related (including water storage and agricultural structures), resulting in 1,094 people displaced, almost double the number in 2010. As of October 1, 2012, 467 structures have been demolished since the beginning of the year, including 140 family homes. As a result, 615 people have been displaced and offered neither alternative housing nor compensation. Most demolitions and displacement (92%) occurred in already vulnerable farming and herding communities in Area C; thousands of others remain at risk of displacement due to outstanding demolition orders. More than 60% of the Palestinian-owned structures demolished in 2011 were located in areas allocated to Israeli settlements. All recorded demolitions raise suspicions of having been carried out in defiance of international law, and together likely constitute a grave breach of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, to which Israel is a signatory, and which constitutes customary international law. 3. The demolition of Palestinian homes and other structures, forced or consequent displacement, land expropriation, and settlement expansion are politically and ethnically motivated. Their goals are to limit development and confine the four million Palestinian residents of the West Bank, East Jerusalem, and Gaza to small enclaves, thus effectively foreclosing any viable, contiguous Palestinian state, and to ensure Israeli control and Judaization of the occupied West Bank and East Jerusalem.

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4. Judaization refers to the practices whereby Israel has actively sought to transform the physical and demographic landscape to correspond with a political vision of a united and fundamentally Jewish land under Israeli sovereignty in historic Palestine. Israel pursues a concerted policy of land expropriation, demolitions, forced evictions and discriminatory development, displacing Palestinians and introducing Jewish inhabitants. Israeli Government ministries openly continue to advance evict and Judaize programmes, displacing Palestinians, directly or indirectly, and replacing them with Jewish inhabitants, despite international remonstration. 5. We are witnessing a process of ethnic displacement and Judaization institutionalized policies designed to alter the ethnic, religious or racial composition of an affected population, namely Palestinians residing in Area C of the occupied West Bank and East Jerusalem. This strategy has resulted in many members of that population relocating to Areas A and B, which are nominally under Palestinian Authority control. Israels policies not only create a situation of displacement, but also of de facto forced deportation, which may rise to the level of a war crime. For instance, East Jerusalem Palestinians who have relocated to the West Bank or elsewhere as a result of Israel's building and demolition policies may face residency revocation and be barred from re-entering East Jerusalem de facto deporting them. In some cases Palestinians have been physically deported from their communities, such that Israel has indeed committed the war crime of forced deportation. 6. Moreover, following a February 2012 visit to the West Bank and East Jerusalem, the UN Special Rapporteur on the Right to Adequate Housing, Prof. Raquel Rolnik, concluded that in the West Bank the territorial fragmentation and severe deterioration of Palestinian standards of living have been furthered by decades of accelerated expansion of Israeli settlement units that expropriate land and natural resources. To a certain extent, these territorial and demographic changes promoted in the West Bank mirror changes [that] occurred within the Israeli territory after 1948, where Palestinian presence was progressively limited in parallel to a disproportional support to the expansion of Jewish communities. Prof. Rolnik concluded that after the Oslo Agreements Israel retained official temporary control over the vast majority of the occupied West Bank (Area C). At present more than half a million Israeli Jews have settled in the Occupied Palestinian Territory, including East Jerusalem. Prof. Rolnik wrote: Throughout my visit, I was able to witness a land development model that excludes, discriminates against and displaces minorities in Israel which is being replicated in the occupied territory, affecting Palestinian communities. The Bedouins in the Negev inside Israel, as well as the new Jewish settlements in Area C of the West Bank and inside Palestinian neighborhoods in East Jerusalem are the new frontiers of dispossession of the traditional inhabitants, and the implementation of a strategy of Judaization and control of the territory.
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II. Applicable Legal Order


7. At the outset we note that the normative framework applicable to occupation, in particular the Hague Regulations and the Fourth Geneva Convention, were envisaged to regulate short-term occupation, although nothing under international humanitarian law (IHL) would prevent the Occupying Power from embarking on longterm occupation, such as that imposed by Israel over the last 45 years. However, IHL scholars, including the International Committee of the Red Cross (ICRC) 2012 expert meeting on occupation and other forms of administration of foreign territory, assert that prolonged occupation raises legal issues requiring reinterpretation and adjustment, as we set forth in the following statement. 8. As the Occupying Power, Israel is bound by the provisions of IHL, namely the Hague Regulations of 1907 and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949, both of which constitute binding customary international law. Israels claim that the Fourth Geneva Convention does not apply to the OPT has been consistently rejected by the international community, including the UN Security Council and the International Court of Justice. 9. Nevertheless, in July 2012 the Levy Committee, appointed by the Israeli government to explore the legalization of settlement outposts, published its findings in converse. Retired Israeli Supreme Court Judge Edmond Levy and other Committee members (retired District Court Judge Techia Shapiro, and Adv. Alan Baker) upheld the legal doctrine of the Missing Reversioner, claiming that the provisions of the Fourth Geneva Convention do not apply in the case of Israeli occupation of Palestinian land and people. According to the Committee, the Geneva Conventions apply only to the sovereign territory of a High Contracting Party, and therefore do not apply in this situation, since neither Jordan nor Egypt exercised sovereignty over the region in question. Whereas the Committees recommendations have no legally binding effect, they signal a precarious slide toward the absorption of the OPT into the recognized sovereign territory of Israel, while disenfranchising its Palestinian inhabitants. 10. Notably, the aforementioned Missing Reversioner doctrine was authoritatively negated by the International Court of Justice (ICJ) Advisory Opinion on the Wall (2004): Under customary international law, the Court observes, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories have done nothing to alter this situation. The Court concludes that all these territories (including East Jerusalem) remain occupied territories and that Israel has continued to have the status of Occupying Power.

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11. It has long been established that Israels practices in the OPT violate not only the provisions of IHL (outlined in detail below), but further violate Palestinians economic, social, cultural, civil, and political rights enshrined in several bodies of international human rights law (IHRL). Specifically, these include human rights contained, inter alia, in the Universal Declaration of Human Rights of 1948; the International Covenant on Economic, Social and Cultural Rights of 1966; the International Covenant on Civil and Political Rights of 1966; the International Convention on the Elimination of All Forms of Racial Discrimination of 1969; and the Convention on the Rights of the Child of 1990. 12. From the inception of Israeli occupation of Palestinian Territory some 45 years ago, UN Bodies have consistently rejected both the Israeli assertion that IHRL does not apply extraterritorially in the OPT, and Israels claim that it can legitimately differentiate between Israelis and Palestinians in the OPT on the basis of citizenship. 13. ICAHD maintains that IHRL is applicable to all territory over which a state exercises effective control, including occupied territory, as expressed by numerous UN Treaty Bodies and, most notably, the ICJ Advisory Opinion on the Wall (2004): The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions. 14. Likewise, the Human Rights Committee General Comment no. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), Article 10, stipulates that: States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. [] This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained. 15. Whereas the prevalent legal regime or lex specialis in belligerent occupation (pursuant of the Hague Conventions of 1907 and the Fourth Geneva Convention), is arguably IHL, the Human Rights Committee further established that: [] the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. [] both spheres of law are complementary, not mutually exclusive.

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III. Planning Regime


16. Until 1972 planning and building in the West Bank were subject to the Jordanian law enacted in 1966. International law requires Israel, the Occupying Power, to respect the laws applicable in the area before its occupation, unless there is an absolute military or humanitarian need for these to be reformed. Notwithstanding this provision, as early as 1971 Israel comprehensively amended the Jordanian Law by way of Military Order of Planning of Towns, Villages and Structures (# 418). The change in the Jordanian Planning Law was done without authority and in violation of Regulation 43 of the Hague Convention, which obligates the honoring of local laws unless an exception exists due to a compelling need for change, as set forth in the Fourth Geneva Convention. 17. Under Jordanian Law, Local Planning Committees had authority for planning over specific areas, set outline and detailed plans, and issued building permits in accordance with approved plans. The Israeli military order, however, annulled these committees for Palestinian villages. These functions are now performed by the Military Commander through the Israeli Civil Administrations Local Planning and Licensing Sub-Committee, with no Palestinian representation. In the same manner, the Israeli military order annulled the District Committees, which consisted of local and central government representatives and had the authority to approve detailed plans for areas and hear appeals and objections to various planning related issues and decisions. These functions are now carried out by the Civil Administration, without Palestinian community representation. 18. While annulling the Palestinian participation, Military Order 418 introduced Special Local Planning Committees for Israeli settlements. These committees issue building permits in line with plans approved by the Civil Administrations Higher Planning Council and are responsible for enforcement within settlement areas. In the settlements, 16 committees are in place for local councils and four committees are in place for settlements with the status of cities. Not one Palestinian village council or specified part in Area C has a designated Local Planning Committee. 19. Whereas there are detailed plans for almost all Israeli settlements in the West Bank, the Israeli Civil Administration has failed to plan adequately for Palestinian villages in Area C. Most of the land in Area C is not registered and an approved planning regime does not exist for most of the communities. As a result many Palestinians build irregularly and live with the risk that their structures may be demolished. Further, building without a permit is also a criminal offense under Israeli military orders, punishable by a fine or prison sentence. 20. The decision to abolish the planning committees, as well as the conduct of the planning authorities of the Military Commander, are inherent elements of the
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establishment of the settlement framework, which is illegal in and of itself, according to Article 49 of the Fourth Geneva Convention. Furthermore, the Israeli planning regime has proven to be a systematic impediment to development of Palestinian communities in Area C.

IV. Israeli Policies and Practices in East Jerusalem


21. East Jerusalem is currently home to approximately 300,000 Palestinians. They experience racial discrimination in many spheres of life, from education to cultural development to housing, and are the subject of a process of ethnic displacement that is the cumulative result of the policies and practices applied to them, particularly those pertaining to housing and legal status. Numerous official Israeli government documents express the deliberate intent to limit Palestinian population growth in the city of Jerusalem. 22. Israels policies and practices vis--vis Palestinian East Jerusalemites constitute institutionalized discrimination and domination of one population over the other, with the intent perpetuating this domination by strengthening the numbers and socio-economic well-being of one population at the expense of another. The maintenance of a demographic balance based on ethnicity or nationality constitutes, prima facie, an illegal and repugnant practice of discrimination reminiscent of the motivation behind policies of racial segregation and apartheid. 23. Furthermore, the results of these policies are already tangible. Israels discriminatory planning and housing policies and practices in East Jerusalem, including administrative home demolitions and discriminatory residency policies (particularly since the start of the Second Intifada), have set into motion a process of ethnic displacement of parts of the Palestinian population of East Jerusalem. Should the status quo of policies and practices remain or worsen the resulting ethnic displacement will become irreversible. The status of permanent resident and its impact on East Jerusalemites' lives: 24. Of the more than 300,000 Palestinian residents in East Jerusalem, the vast majority are recognized under Israeli law as permanent residents rather than as citizens of Israel. This reduces legal status of native Palestinian Jerusalemites to that of foreign citizens resident in Israel, thus rendering them vulnerable to revocation of their residency rights and consequent loss of the social services to which they are legally entitled. The alternative categorization of permanent resident, far from creating a viable alternative, is easily revoked consequently denies Palestinian Jerusalemites their residency rights and access to basic social services. Following the Israeli High Court of Justice ruling in the case of Mubarak Awad, retaining permanent residency is conditional on compliance with Israel's centre of life policy and thus
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may be revoked at the discretion of the Minister of the Interior. This policy dictates that if an individual does not centre their life in Jerusalem, their residency and its accompanying rights expire. 25. Maintaining actual presence in Jerusalem is a determining factor in retaining residency, as residing outside East Jerusalem for seven years or more will trigger revocation. Recent years have seen a sharp surge of such revocations, with more than 4,500 in 2008 alone, resulting in over 14,000 revocations to date, some of which occurred without due process. Building permits: 26. Since 1967, the Palestinian population of East Jerusalem has increased from 66,000 to 300,000. Accommodating this natural growth would require the construction of an additional 1,500 housing units per year; yet on average, only 400 units are authorized. Indeed, Israel operates a Kafkaesque housing policy in which Palestinian residents in East Jerusalem are categorically denied the right to build legally, effecting a marked deterioration rather than continuous improvement in their living conditions, and violating their right to safe, permanent housing. 27. Since 2002 new requirements, beyond those of the Planning and Building Law, have increased the difficulty of obtaining a building permit; for example, proof of ownership must be produced for the land on which the applicant wishes to build. Previously the Jerusalem Municipality was satisfied with the laws proof-ofownership procedures, but in 2002 the rules were tightened, supposedly due to concerns of fraud. The new procedures virtually guarantee that most Palestinian East Jerusalemites cannot meet the requirements for obtaining a permit. 28. Whereas proving ownership in West Jerusalem is a simple procedure conducted through the Property Registry, it is much more difficult in East Jerusalem, since most of the land was not registered by the British or the Jordanians prior to 1967, and in that year Israel froze the process of land registration. In fact, the ownership of more than half of the land in East Jerusalem is not registered, thereby rendering it effectively impossible under the new procedures for land-owning residents to obtain permits for new construction on their land.

V. Israeli Policies and Practices in Area C


29. Following the 1995 Interim Agreement on the West Bank and the Gaza Strip and the subsequently negotiated division of the Occupied West Bank, Area C (comprising 62% of the West Bank) remained under full Israeli security and civil control, an arrangement that has remained since the halt in negotiations. This partition severely fragments Palestinian communities, as well as isolating a great expanse of rural land
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in Area C, while enclosing heavily built-up enclaves in Areas A and B. Thus, whereas 150,000 Palestinians reside in Area C, the remaining 2.3 million are squeezed into 38% of the territory. 30. Palestinian presence in Area C has been continuously undermined through different administrative measures, planning regulations and other means adopted by Israel as Occupying Power, including wanton demolition of Palestinian residential and livelihood-related structures. The increasing depopulation and integration of Area C into Israel proper has left Palestinian communities in the area ever more isolated and at growing risk of displacement. At the same time, illegal Israeli settlements in Area C continue to flourish under detailed plans approved by the Israeli Civil Administration, which incorporate expansion areas nine times the size of the current built-up areas. 31. The establishment of a viable Palestinian state within the pre-1967 borders is viable only if current trends are stopped and reversed which seems unfeasible. In truth, the window of opportunity for a two-state solution has closed, mainly due to the continued expansion of Israeli settlements and access restrictions for Palestinians in Area C, the only contiguous area in the West Bank surrounding Area A and B. Moreover, Israeli Parliament Members, hailing from the ruling Likud party and other members of the coalition government have recently established a parliamentary caucus for the annexation of Area C. The caucus introduced a draft bill in May 2012, calling for the application of Israeli sovereignty to Area C of the West Bank. Deliberations on the draft bill were postponed by the Prime Minister, but are likely to resume shortly in the form of a draft bill targeting particular areas (see Jordan Valley). The parliamentary caucus relates to the Partial Annexation and Pacification program advocated by the former Prime Ministerial Chief of Staff, explicitly calling for the de jure annexation of 62% of the West Bank in order to stifle the Palestinian peoples aspiration for self-determination and to solidify Israeli dominance. Jordan Valley: 32. Since the occupation began in 1967, Israel has coveted the Jordan Valley for its economic potential, and not least for its strategic development importance in forestalling a viable Palestinian State. In his May 2011 speech to the US Congress, Israeli PM Binyamin Netanyahu asserted that in any final status agreement that may be reached with the Palestinians, Israel would retain control over the Jordan Valley. The policy of colonization in recent decades has accelerated, with the last two years seeing an all-time high in the expansion of settlements at the expense of Palestinian communities.

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33. In 2011, house demolitions and forced evictions in the Jordan Valley increased fivefold compared with 2010. In all, 199 structures, 44% of which were family homes, have been demolished, displacing 401 people and dispersing entire communities. These figures represent 40% of residential structures demolished and 37% of people displaced in the OPT in 2011. 34. In the first six months of 2012, 116 structures were demolished in the Jordan Valley (39% of all structures demolished in the West Bank. Of these, 39 were family homes, resulting in the displacement of 197 people (37% of the total number of people displaced in the West Bank), thereby adversely affecting the livelihood of a further 772 people (42% of the total number of people affected in the West Bank). 35. In July 2012 the parliamentary caucus for the annexation of Area C, headed by MK Miri Regev (Likud) tabled a draft bill calling for the de jure annexation of the Jordan Valley, with the exception of areas under the nominal control of the Palestinian Authority (Areas A and B, which constitute less than 13% of the Jordan Valley). The draft bill would require the application of Israeli sovereignty over all settlements in the Jordan Valley, citing the Palestinian statehood initiative as the pretext for annexation at this time. The draft bill further cites the long-standing position of Israeli governments that, in any final status agreement signed with the Palestinian Authority, Jewish settlements (including those in the Jordan Valley) will remain under Israeli sovereignty. Greater Jerusalem: 36. The Palestinian-Bedouin communities living in the hills east of Jerusalem (20 communities housing more than 3,000 people in all) are in increasing peril of displacement and forcible transfer. The communities have been informed by the Israeli authorities that they have no option but to leave the area, as part of a larger plan to relocate Bedouin communities living in Area C (the Jerusalem periphery, Jordan Valley, and South Hebron Hills), where Israel retains control over security as well as planning and zoning. In the first six months of 2012, 62 structures were demolished in the Greater Jerusalem Area (21% of the total structures demolished in the West Bank), of which 25 were family homes (27% of the total residential structures demolished in the West Bank), resulting in the displacement of 175 people (33% of the total number of people displaced in the West Bank). 37. The Bedouin homes are currently located in an area of strategic significance for further expansion of illegal Israeli settlements. This area includes the E1 plan, which foresees the expansion of Maale Adumim and its linkage to Judaized East Jerusalem and Jordan Valley settlements. If implemented, these plans, along with Separation Barrier construction in the area, would constrict Palestinian growth and development and sever the territorial contiguity of a future Palestinian state.

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Threat of Displacement: 38. In the first six months of 2012, Israeli authorities issued at least 280 stop-work and demolition orders in Area C of the West Bank. Of these, 42% were issued in the Hebron District, 20% in the Jenin District (affecting Jordan Valley communities), and 11% in the Ramallah District (affecting Greater Jerusalem communities).

VI. The Normative Nature of Prolonged Occupation


39. The tension between an occupying powers duty to maintain the status quo in an occupied territory (presumably in anticipation of a permanent sovereign quickly assuming control over the territory immediately following the pacification of armed conflict) and its duty to maintain public order and safety grows ever more significant in the case of a prolonged occupation, such as Israels. Calling on Israel to create conditions under which Palestinians may develop and progress may be regarded as being at odds with its obligation to refrain from making legal and physical changes to the OPT. Though Israel has, of course, imposed such changes upon the OPT for the benefit of its own colonizing population. 40. ICAHD firmly maintains that Israels occupation can no longer be considered temporary, and that other obligations should be invoked, such as the right to selfdetermination. Hence, when occupation becomes protracted, and with no end in sight, the principle of conservation of occupied territory must be reconsidered. A freeze on Palestinian development, for instance, would inevitably lead to stagnation and be detrimental to the population. Moreover, decisions related to economic, social and political rights should be decided with a view towards the welfare of the local population. 41. It is widely agreed that IHRL must be referenced in order to promote the concept of population welfare, and to delineate and set restraints on the occupying powers actions. In particular IHL experts refer to the rights to health, education, food and housing, codified, inter alia, in the aforementioned conventions and covenants that comprise the human rights treaty system. 42. The right to adequate housing, enshrined in the International Covenant on Economic, Social and Cultural Rights, is an essential component of the right to an adequate standard of living. When guaranteed, it provides a foundation for the realization of other rights, including the rights to family, work, education and, ultimately, self-determination. Furthermore, Israeli policies violate its commitments under the International Convention on the Elimination of All Forms of Racial Discrimination, notably Article 5(e)(iii) regarding the right to housing. We further note that in its 2011 concluding observations (E/C.12/ISR/CO/3) the UN Committee
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on Economic, Social and Cultural Rights (CESCR) called upon Israel to stop forthwith house demolitions, forced evictions and residency revocation in the OPT and East Jerusalem, saying: The Committee is deeply concerned about home demolitions and forced evictions in the West Bank, in particular Area C, as well as in East Jerusalem, by Israeli authorities, military personnel and settlers. The Committee urges the State party to stop forthwith home demolitions. The Committee also recommends that the State party review and reform its housing policy and the issuance of construction permits [], in order to prevent demolitions and forced evictions and ensure the legality of construction in those areas. Moreover, the Committee on the Elimination of Racial Discrimination (CERD) called on Israel in its 2012 concluding observation (CERD/C/ISR/CO/14-16) to take immediate measures to eradicate apartheid policies or practices which severely affect the Palestinian population in the OPT, and which violate the provisions of the Convention on the prevention of racial segregation and apartheid: The Committee draws the State Partys attention to its General Recommendation 19 (1995) concerning the prevention, prohibition and eradication of all policies and practices of racial segregation and apartheid, and urges the State party to take immediate measures to prohibit and eradicate any such policies or practices which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory. 43. By extension, the longer an occupation lasts, the more the local population should be consulted on decisions pertaining to the administration of occupied territory, land and people. Moreover, the consent of the local population should be used to determine the validity and legality of intentions behind the occupying powers actions. 44. However, inclusion in the decision-making process would rely solely on the good faith and willingness of the occupying power, a willingness that Israel has consistently failed to demonstrate in the course of nearly five decades of occupation. Therefore, another means of achieving self-determination and upholding IHRL must be considered. ICAHD firmly holds that only the transfer of authority from occupying power to local communities would entitle the Palestinians at least partially to administer their lives according to their own political will. 45. In this context, we are mindful of the ICJ convergence doctrine, which holds that a states obligations under IHRL are not suspended when the state enters into an armed conflict. In numerous cases, including the 2004 Advisory Opinion, the ICJ held that an occupying power has obligations not only as the occupying power under the Fourth Geneva Convention, but also under any treaty obligations taken on by the occupying power in relation to its sovereign territory, extraterritorially in occupied territory under its effective control. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts
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done by a State in the exercise of its jurisdiction outside its own territory. Having determined the rules and principles of international law relevant to reply to the question posed by the General Assembly, and having ruled in particular on the applicability within the Occupied Palestinian Territory of international humanitarian law and human rights law. 46. In any case, measures taken by the occupying power should not further its own interests, such as by using the assets of occupied territory to benefit its own population or economy. Yet, in December 2011 the Israeli High Court of Justice issued a controversial ruling on the legality of Israeli-owned quarries in the West Bank, holding that the unique characteristics of Israels belligerent occupation of the OPT implied additional powers and rights to the occupying power under international humanitarian law: As has been held in many occasions under our rulings, the belligerent occupation of Israel in the Area has some unique characteristics, primarily the duration of the occupation period that requires the adjustment of the law to the reality on the ground, which imposes a duty upon Israel to ensure normal life for a period, which even if deemed temporary from a legal perspective, is certainly long-term. Therefore, the traditional occupation laws require adjustment to the prolonged duration of the occupation, to the continuity of normal life in the Area and to the sustainability of economic relations between the two authorities the occupier and the occupied. 47. The Courts misguided interpretation of IHL seeks to modify its provisions on the pretext of prolonged occupation to allow for economic exploitation of occupied territory. This precarious approach is reflected in the long-term, entrenched relationship of occupied and occupier in the OPT, starkly contradicting the Palestinian aspiration for national self-determination.

48. We recall the statement made in November 2010 by Prof. Richard Falk, the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967: The Palestinian experience suggests the need for a new protocol of international humanitarian law, some outer time limit after which further occupation becomes a distinct violation of international law, and if not promptly corrected, constitutes a new type of crime against humanity. 49. A crime against humanity is understood to mean any of the following acts, designated by the Rome Statute of the International Criminal Court (ICC): deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; persecution of any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, and gender grounds in connection with any crime within the jurisdiction of the Court; and the crime of apartheid.
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50. The mere fact that international law does not prohibit occupation raises serious questions. However, if occupation is not rendered illegal, then international law must respond to the metastasized nature of the occupation, and clearly distinguish temporary and legal occupation from prolonged and illegal occupation. 51. The protracted nature of Israels occupation of the OPT demonstrates that those drafting the Hague and Geneva Conventions did not envisage prolonged occupation, and suggests that the term belligerent occupation may be inappropriate and irrelevant if applied to the OPT, and perhaps to other cases of occupation. In an international system based on equal sovereignty of states and the indelible right to self-determination, prolonged occupation deviates substantially from fundamental principles. Thus, ICAHD firmly holds that the international legal system should define prolonged occupation as prohibited activity under international law, an activity that breaches jus cogens of international law, and consequently should be criminalized.

VII. Erga omnes Right to Self-Determination


52. The right of all peoples to self-determination is irrefutably a norm of jus cogens, a peremptory norm or fundamental principle of international law which is accepted by the international community as a norm from which no derogation is permitted. Indeed, the ICJ case law supports the view that the principle of self-determination also has the legal status of erga omnes, or owed to all, as demonstrated below. Consequently, erga omnes obligations of a State are owed to the international community as a whole. When a principle achieves the status of erga omnes, the international community is under a mandatory duty to respect it in all circumstances in their relations with others. 53. The right of all peoples to self-determination is enshrined in several international instruments, notably the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, in accordance with the Charter of the United Nations adopted in 1970 by General Assembly Resolution 2625: Bearing in mind also the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations, Considering that the faithful observance of the principles of international law concerning friendly relations and co-operation among States and the fulfillment in good faith of the obligations assumed by States [] Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence. [] By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the
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duty to respect this right in accordance with the provisions of the Charter. [] To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter. 54. It is worth noting that self-determination may have varying political manifestations, as stated in the above-mentioned Resolution: The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of selfdetermination by that people. 55. The right to self-determination is further elaborated in the International Covenant on Civil and Political Rights (ICCPR). In accordance with the purposes and principles of the Charter of the United Nations, Article 1 of the ICCPR recognizes that all peoples have the right of self-determination. The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for this reason that States set forth the right of self-determination in a provision of positive law in the Covenant and placed this provision as Article 1, apart from and before all of the other rights in the Covenant. 56. ICCPR Article 1 enshrines an inalienable right of all peoples to freely determine their political status and freely pursue their economic, social and cultural development. The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law. In its General Comment No. 12, The right to self-determination of peoples, the Human Rights Committee stated clearly that it is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis--vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. The general nature of this paragraph is confirmed by its drafting history. It stipulates that: 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-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. 57. The obligations exist irrespective of whether a people entitled to selfdetermination depend upon a specific State party to the Covenant or not for its realization. It follows that all States parties to the Covenant should take positive
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action to facilitate realization of and respect for the right of peoples to selfdetermination. 58. For that reason, Israel is obligated to create and maintain conditions that will ensure Palestinians realization of their rights to self-determination, participation without discrimination in public affairs, and their right, as individuals and collectively, to develop and advance their respective communities economically, socially, culturally, and politically, according to their needs. That assertion has been authoritatively upheld by the ICJ in its 2004 Advisory Opinion: The Court also notes that the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 cited above, pursuant to which Every State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] [] of their right to self-determination. Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights reaffirms the right of all peoples to self-determination, and lays upon the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions of the United Nations Charter. [] Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. [] The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law. 59. As stated above, the right to self-determination is owed to all peoples, but the right of indigenous people to self-determination in a colonial and/or post-colonial context deserves further consideration. Palestinians are no exception to this rule. They have long maintained, quite correctly, their right to self-determination. The United Nations Declaration on the Rights of Indigenous Peoples of 2007, Article 3, states that indigenous peoples have the right to self-determination, and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 60. Thus, the right of self-determination of indigenous peoples may be interpreted as their right to form new States or, alternatively, to negotiate arrangements to strengthen States and make them truly representative, democratic, and inclusive. 61. It is worth noting that whereas Palestinians irrefutably retain the statehood prerogative, they may choose subject to the fulfillment of substantive and procedural guarantees to freely exercise their right to self-determination through integration on an equal constitutional and administrative basis, with no prejudice to
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the non-indigenous or colonial people with whom they integrate. Such was the case of the 1953 integration of Greenland with Denmark. UN General Assembly Resolution 849 recognized that: When deciding on their new constitutional status, through their duly elected representatives, the people of Greenland have freely exercised their right to self-determination. [] Greenland freely decided on its integration within the Kingdom of Denmark on an equal constitutional and administrative basis with the other parts of Denmark. [] Provisions established under it in Chapter XI of the Charter can no longer be applied to Greenland.

VIII. Israeli Policies and Practices and Implications in International Criminal Law
62. Illegal Israeli practices, such as the widespread demolition of homes, basic infrastructure and sources of livelihood, continue to shatter Palestinian communities in the OPT. Demolitions are almost invariably in contravention of international law, and lead to substantial deterioration in living conditions for entire communities. As a result, large numbers of Palestinians face increased poverty and long-term instability, as well as limited access to basic services such as education, health care, water and sanitation. This destruction must be discontinued and the damage repaired if Israel is to meet its obligations under international law to guarantee the human rights of Palestinians. 63. Moreover, Article 147 of the Fourth Geneva Convention defines grave breaches of the Convention as those involving, among others, any of the following acts, if committed against persons or property protected by the Convention: inhuman treatment, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly, and deportation or transfer of a protected person. According to the Rome Statute of the ICC, Article 8, grave breaches constitute war crimes and give rise to individual criminal responsibility. Even states, such as Israel, that have not acceded to the Rome Statute might still be subject to an obligation to co-operate with the ICC in certain cases. Consequently, Israels policies and practices, prevalent in the OPT, may very well constitute war crimes under Article 8(2)(a)(iv) and Article 8 (2)(a)(vii) of the ICC Statute. 64. Furthermore, Israeli policies and practices in the OPT may constitute crimes against humanity under Article 7(1)(d) Deportation or forcible transfer of population; Article 7(1)(h) Persecution of any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds; and Article 7(1)(j) The crime of apartheid; as well as a violation of the UN Convention on the Suppression and Punishment of the Crime of Apartheid of 1973. The crime of apartheid should be understood to mean inhumane acts committed in the context of
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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. 65. In Resolution 177(II) the UN General Assembly directed the International Law Commission to formulate the principles of the International Military Tribunal (IMT) Judgment as principles of international law (known since then as the Nuremberg Principles) as follows: Any person who commits an act which constitutes a crime under international law is responsible and liable to punishment for that act; The fact that a person who committed an act which constitutes a crime under international law acted as a Head of State or responsible government official does not relieve him from responsibility under international law; The fact that a person acted pursuant to an order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. 66. In recent years, Israeli delegates appearing in international fora (UN Treaty Bodies, the Human Rights Council, etc.) have repeatedly alluded to mens rea (Guilty Mind) when addressing matters related to Israeli policies and practices in the OPT. This connection is most probably with a view towards defenses in international criminal law, notably ICC Statute Article 30, which states: Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Other defenses in international criminal law (duress, self-defence, mental incapacity) appear less appropriate, and invoking military necessity would be extremely difficult given the nature and scope of Israeli practices, which are overwhelmingly and pronouncedly administrative. 67. However futile the defence may be, its mainstreaming into IHRL signifies a precarious approach toward the responsibility and accountability of Israeli dutybearers, and should be understood in the context of a legal strategy designed to deflect individual criminal responsibility, thereby allowing the State and its agents to operate with impunity while perpetrating the putative crime of prolonged occupation.

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IX. Recommendations
ICAHD encourages the International Fact Finding Mission (FFM) to adopt the following conclusions and recommendations: 68. To express deep concern that Israel refuses to meet obligations contained in human rights treaties with respect to the Palestinian population in the OPT and to report on their situation. The UN should reiterate its position that Israel must respect, protect and fulfill Palestinians rights, as codified in the human rights treaty system, and report accordingly. 69. To register grave concern with Israel's continuing deplorable practices of house demolitions, land expropriation, and policies resulting in inadequate housing and substandard conditions for Palestinians living under prolonged occupation. 70. To register grave concern that Israels settlement policy in the OPT and policy of displacement toward Palestinian residents of Area C and East Jerusalem amount to forced population transfer and may, in some cases, amount to a war crime. 71. To insert into the Human Rights Councils agenda the issue of the legality of the prolonged Israeli occupation, which has persisted for 45 years with no apparent time limit. The legal implications of a prolonged and indefinite occupation that has morphed into a new type of crime against humanity need to be explored. We urge the Council to commission a study on the adequacy of international humanitarian law to cover situations of prolonged occupation, and to provide the international community with appropriate recommendations for distinguishing between temporary, legal occupation on the one hand, and prolonged, possibly illegal occupation on the other. 72. We further call on the FFM to propose to the Human Rights Council to call for an General Assembly Resolution seeking an ICJ Advisory Opinion that: (i) establishes a new normative paradigm of prolonged occupation; (ii) reinforces the inalienable human rights of the Palestinian people to development and self-determination; (iii) establishes the scope and magnitude of Israels illegal policies and practices in the OPT, beyond the breaches of IHL and matters referred to in the 2004 Advisory Opinion; and (iv) upholds the legal obligations of all states and international organizations to cooperate in ending Israels breaches and prolonged occupation.

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ICAHD recommends that the FFM urge Israel to: 73. End the prolonged occupation of the OPT, and to respect, protect and fulfill Palestinians' right to self-determination. 74. Cease forthwith the demolition of Palestinian structures and property, expropriation of land, and the development of settlements, which cause displacement and dispossession and are in violation of international law. 75. Cancel immediately and desist from issuing all stop-work, demolition and eviction orders against Palestinian homes and other structures in the OPT, including East Jerusalem. Israel should grant building permits for Palestinians living in Area C and East Jerusalem in a manner consistent with the development needs of the communities and their status as protected persons. 76. Transfer powers and responsibilities related to planning and zoning in the West Bank, including Area C, to Palestinian jurisdiction in accordance with international law, to allow for genuine representation of Palestinian communities in the planning process. 77. Ensure that all refugees and internally displaced persons who have been forcibly displaced be allowed to return to their homes in safety and dignity, and be given compensation for any harm they have suffered, including the destruction of land, homes and property, in accordance with UN Resolution 194. 78. ICAHD calls for the cooperation of all states and international organizations in bringing an end to the prolonged Israeli occupation and the illegal practices and policies arising from it. All states and international organizations must consider appropriate measures to exert pressure on Israel to end the occupation. Such measures include: an ICJ Advisory Opinion on the legality of Israeli practices arising from prolonged occupation, appropriate sanctions, and the severing of diplomatic relations. Further, ICAHD calls for the suspension of the EUIsrael Association Agreement and the USIsrael Free Trade Agreement until Israel complies with international law and ends its illegal policies and practices and prolonged occupation.

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