Updates

Daniel Meyerowitz-Katz

Earlier today, this blog noted that Israel has been boycotting the United Nations Human Rights Council due to the Council’s habitual singling-out of Israel for unfair, unwarranted, and utterly biased criticism.

A report on settlements in the West Bank, the commission of which spurred Israel’s decision to cease cooperation with the Council, has just been released. Sadly, the Report entirely vindicates Israel’s position on the matter. Its three authors began by determining Israel’s guilt, then conducted an investigation into why it was, in fact, guilty. The research was lazy at best – with numerous unreferenced assertions and many very basic factual errors.

Most importantly, they made no effort whatsoever to provide any form of context or balance, or even to acknowledge that some of the allegations they were making were in any way controversial. They simply re-hashed a series of tired and repeatedly debunked accusations against Israel. Whatever legitimate criticisms were made in the report are buried so far down amid layers of unfounded invective as to make them near impossible to find, let-alone act on.

Below is an itemised critique of the Report, highlighting numerous examples of errors and misinformation.

1. Terms of reference

The Report was commissioned by Human Rights Council Resolution 17/19 of 2012. The Resolution had already judged Israel to be guilty. It provided, inter alia, that:

the Israeli settlement activities in the Occupied Palestinian Territory, including in East Jerusalem, are illegal under international law and constitute very serious violations of international humanitarian law and of the human rights of the Palestinian people therein, and undermine international efforts, including the Annapolis Peace Conference of 27 November 2007 and the Paris International Donors’ Conference for the Palestinian State of 17 December 2007, aimed at invigorating the peace process and establishing a viable, contiguous, sovereign and independent Palestinian State by the end of 2008.

The Resolution expressed ‘grave concern’ at:

The continuing Israeli settlement and related activities, in violation of international law, including the expansion of settlements, the expropriation of land, the demolition of houses, the confiscation and destruction of property, the expulsion of Palestinians and the construction of bypass roads, which change the physical character and demographic composition of the occupied territories, including East Jerusalem and the Syrian Golan, and constitute a violation of the fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and in particular article 49 of that Convention, and recalls that settlements are a major obstacle to the establishment of a just and comprehensive peace and to the creation of an independent, viable, sovereign and democratic Palestinian State;

It then provided that the Council:

Decides to dispatch an independent international fact-finding mission, to be appointed by the President of the Human Rights Council, to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, with a mandate ending on submission of a report to the Council, and calls upon Israel, the occupying Power, not to obstruct the process of investigation and to cooperate fully with the mission;

This Report was submitted on 30 January 2013, entitled: ‘Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem’.

2. Definition of ‘settlements’

At the outset, the Report defines ‘settlements’ as:

all physical and non-physical structures and processes that constitute, enable and support the establishment, expansion and maintenance of Israeli residential communities beyond the 1949 Green Line in the OPT. The Mission does not differentiate between “settlements”, “settlement blocks”, “outposts”, or any other structures that have been erected, established, expanded and/or appropriated or any land or natural resources appropriated (at [4], emphasis added).

This is the broadest possible interpretation of the term, and is far broader than anything contemplated by the ICJ.

Consistent with its terms of reference, the sum total of the Mission’s consideration of the legality of these settlements was contained in one paragraph, on the fifth of 37 pages, providing that:

Article 49(6) of the Fourth Geneva Convention also prohibits an occupying Power from transferring parts of its own civilian population into the territory that it occupies. This prohibition has attained the status of customary international law. The Mission notes that the Israeli settlements in the OPT, including East Jerusalem, violate this provision and are thus, illegal under international law (at [16]).

The Report did not mention the controversy over that interpretation of the GCIV. It also failed to confront  Israel’s annexation of East Jerusalem, which should in principle mean that the Geneva Convention ceased to apply. 

The breadth of the application of this definition can be seen when the Report identifies ‘a number of business activities and related issues that raise particular human rights violations concerns’, including such heinous crimes as ‘[t]he supply of security services, equipment and materials to businesses operating in settlements;’ ‘[t]he provision of services and utilities supporting the maintenance and existence of settlements, including transport; [b]anking and financial operations helping to develop, expand or maintain settlements and their activities, including loans for housing and development of businesses;’ and ‘[t]he use of natural resources, in particular water and land, for business purposes’ (at [96]).

3. Occupation

Regarding ‘occupation’, the Report provides that:

A situation of military occupation prevails in the OPT. As the occupying Power, Israel is bound under international humanitarian law by a set of obligations which are provided for in the Hague Regulations 1907, annexed to the Hague Convention IV respecting the Laws and Customs of War on Land 1907, which are recognised as forming part of customary international law, and Geneva Convention IV relative to the Protection of Civilian Persons in Time of War 1949 (“Fourth Geneva Convention”), to which Israel is a High Contracting Party (at [13], emphasis added).

The term ‘military occupation’ is distinct from the Hague Regulations and the Fourth Geneva Convention (‘GCIV’), which refer to ‘belligerent occupation’. This is a subtle point, but it makes all the difference in terms of appliying the law. For a panel of supposed ‘legal experts’, this is sloppy research at best.

4. Significant omissions

4.1. Security measures

The Report discusses at length the impact of various measures, such as movement restrictions and the construction of the security barrier in the West Bank. These measures are in place to prevent terrorist attacks against Israelis – a fact that the Report utterly failed to note. In fact, that Israel has been subject to attacks by Palestinians is not mentioned once in the entire document.

4.2. West Bank legal system

A substantial amount of the alleged human rights abuses in the Report are due to the application of the Jordanian legal system in the West Bank, largely as it existed when Israel took control in 1967. The Report does not at any stage explain why Israel is implementing that system – which is in fact required under the laws of belligerent occupation.

Were Israel to cease implementing that system, it would be in breach of its obligations under international humanitarian law. Furthermore, whenever the possibility of Israel substantially amending that system is raised, Israel is condemned for attempting to annex the West Bank by imposing its own legal system. If continuing to apply the Jordanian legal system is against international law, Israel is caught in a Hellerian Catch-22.

5. Direct inconsistencies

5.1. Location of settlements

In some instances, the Report directly contradicts its own findings. For example, at one stage, the Report states that:

‘Settlements are generally located amongst the more vulnerable sections of Palestinian society, predominantly agrarian villages’ (at [18]).

Then in the next paragraph, the Report notes that:

The Mission heard that settlers can broadly be divided into three categories. Those who have moved on quality of life grounds and live in settlements close to Jerusalem and Tel Aviv. Ultra-Orthodox Jews, who constitute over 25 per cent of the settler population … are generally found in settlements closer to the Green Line. A third group seems to be motivated by political and religious ideologies; they live in the central part of the West Bank, often very close to Palestinian communities (at [19], emphasis added).

The Report later notes that there are 520,000 settlers – 200,000 in East Jerusalem and 320,000 the rest of the West Bank (at [37]). This implies, correctly, that the vast majority of ‘settlements’ as the Report defines them are located either in East Jerusalem, or close to the Green line. They are plainly not, therefore, generally located amongst ‘the more vulnerable sections of Palestinian society, predominantly agrarian villages’.

5.2. Price tags

When discussing the so-called ‘price tag’ attacks, the Report recognises that ‘the intention is to deter Israeli authorities from taking any action perceived to be against settlers’ interests while at the same time to provoke Palestinians into a response’ (at [55]). This clearly acknowledges that these attacks are, in effect, attempts to intimidate the Israeli government. Later, the Report implies that the attacks can be imputed to the Israeli government (at [60]).

6. Inclusion of antisemitic conspiracies

Regarding access to holy sights, the Report states that:

The Mission was also informed about archaeological excavations being conducted in and around the Old City of Jerusalem and the building there of a network of underground tunnels, including those connecting settlement installations in the Palestinian neighbourhood of Silwan with the Old City. It has been alleged that these archaeological excavations intend to emphasise the Jewish cultural heritage while disregarding – or worse undermining – the rich heritage of other cultures that have contributed to the millenary history of the city (at [59]).

The allegations referred to are essentially the argument put forward by the Palestinian Authority, Hamas, and others, in order to prevent any archeological investigation of the holy sites in Jerusalem. This serves primarily to assist the position of these bodies that there is no historical Jewish link to Jerusalem.

7. Reliance on second-hand sources

At one stage, the Report discusses Israeli government Reports on settlements:

Studies on settlements commissioned by the Office of the Prime Minister in 2005 (Sason report) and 2012 (Levy report) document the Government’s authorization in the establishment and expansion of settlements up to 1992 and indicate that settlements built afterwards with no Government authorization (“outposts”) were established with the “full knowledge of all [authorities], starting with the government ministers and prime minister, and until the lowest enforcing agencies (…) the denial had but one goal only: to withstand criticism by various factors, mostly international”. Sason concluded that “unauthorized outposts violate[s] standard procedure, good governing rules (…) endanger the principal of the rule of law [and thus] urgent measures must be taken to change [this] reality” . In contrast the findings of the Levy report suggested the retroactive authorization of “outposts” (at [26]).

The references provided are: Haaretz “A Harsh Indictment”, 21 November 2012; Talya Sason, “Summary of the Opinion Concerning Unauthorized Outposts”, 8 March 2005. This implies that the Mission did not actually read either report in full, and did not even read the Levy report in part. The Mission apparently deemed it sufficient to rely on journalists’ interpretations of the content of the report, without reading the report itself.

8. Incorrect or unverified research

8.1. Water resources

The Report alleges that:

The settlements, including the associated restrictions, impede Palestinian access to and control over their natural resources. The Secretary General has noted that “Palestinians have virtually no control over the water resources in the West Bank” (at [36]).

The reference given for this is a 2012 report by the Secretary-General of the UN, which in turn referred to a 2004 report by the Economic and Social Council. The exact wording of the Secretary-General’s report was:

Palestinians have virtually no control over the water resources in the West Bank. The route of the wall, which renders 9.4 per cent of West Bank territory inaccessible to Palestinians, except for those who receive a permit, has severe impacts on the control of Palestinians over water resources in the Occupied Palestinian Territory by effectively annexing 51 per cent of the water resources in the West Bank (UN Doc A/67/375, [14], emphasis added).

The Wording in the document to which this refers is:

By constructing the fence Israel will also effectively annex most of the western aquifer system (which provides 51 per cent of the West Bank’s water resources) (UN Doc E/CN.4/2004/10/Add.2, [51], emphasis added).

So in a nine year game of “Chinese Whispers” at the UN, Israel planning to build a barrier in a route incorporating most of an aquifer system that provides 51% of the West Bank’s water became the Palestinians having ‘virtually no control over the water resources in the West Bank’. 

Additionally, the route of the barrier as it currently stands has been substantially altered since the 2004 plan, but the Mission apparently did not think that it was worth checking if the actual route incorporated the same land.

8.2. Population growth

At one stage, the report asserts that ‘Over the past decade the settler population has grown at a much higher rate than the population in Israel itself with a yearly average growth of 5.3 per cent (excluding East Jerusalem), compared to 1.8 per cent in Israel.’ It cites just ‘Israeli Central Bureau of Statistics’, without mentioning either a specific report by that Bureau, or how these numbers were calculated (at [28]).

8.3. Israel’s establishment

The Report claims that:

The “Declaration of the Establishment of the State of Israel” is issued. It equates Eretz-Israel (in Hebrew “the Land of Israel”) to the territory of British Mandate Palestine, in contrast to the provisions of 1947 United Nations General Assembly Resolution 181 on the partition of the British Mandate of Palestine into two Independent Arab and Jewish States (at p23).

This allegation is unfounded and entirely incorrect. In fact, the Declaration specifically provides that:

THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947.

9. Complete failure to contextualise

9.1. Bedouins

When lamenting the situation of Bedouins in Israel, the Report notes that:

Many are food insecure, do not have access to basic services, and are connected neither to the electricity grid, the road network or water systems. Over 90 per cent face water scarcity, living with less than one-quarter of the World Health Organization (WHO) minimum standards (at [66]).

The Report does not include the very simple explanation for this lack of electricity and water: the Bedouin are traditionally a nomadic people, and many continue to live a nomadic lifestyle. As their homes are not permanent, they are not linked to any permanent source of electricity or water.

9.2. East Jerusalem

Regarding the Arabs in East Jerusalem, the Report states that:

Palestinians are excluded from consultative decision-making processes and are not represented in the Special Planning Committees, which consist of settlers and are enabled to issue and enforce building permits (at [69]).

This entirely mischaracterises the situation. The Arabs of East Jerusalem deliberately boycott the local municipal process, in which they are  fully entitled to participate under Israeli law. That is why they do not sit on these committees.

9.3. Labour conditions

The Report provides that:

The inability for the Palestinian economy to expand and offer opportunities, high unemployment rates and falling wages in the Palestinian labour market, inflation and increasing poverty are factors that drive Palestinians to seek employment in the settlements and in Israel, where wages are about twice as high as in the Palestinian private sector (at [93]).

This entirely ignores the fact that Palestinians working for Israelis are represented by Israeli trade unions and are subject to Israeli labour laws – which are far more generous than the draconian system run by the Palestinian Authority.