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‘Rule of law’ in Palestine: an interview with jurist Cees Flinterman

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Western governments praise Israel as a bastion of freedom in an otherwise tyrannically governed, strife-torn region — a true “liberal democracy” along the lines of Canada, the US, and the European states.

In its reporting on the current wave of violence — in which 10 Israelis and an estimated 70 Palestinians have been killed and over 8000 Palestinians injured — mainstream media preserves Israel’s lustrous image by avoiding references to key practices of its fifty-year occupation of the West Bank: arbitrary arrest and seizure, often in the dead of night, accompanied by the ransacking of homes and the kidnapping of children; home demolitions in occupied East Jerusalem; forced relocation of Bedouin communities south of Hebron; discriminatory travel regulations; systematic support for Jewish settlers who commit violence against Palestinians and their property, etc. etc.

The stark proportions of Israel’s seemingly permanent occupation is revealed in a 2014 report by a United Nations committee tasked with reviewing the status of a pivotal human rights instrument — the International Covenant on Civil and Political Rights (ICCPR).

Israel had been asked to respond to concerns expressed in the report by November 1 of this year. It did not respond to similar concerns following submission of its last report. I am currently seeking clarification on whether Israel has responded this time around, but assume it has not.

The ICCPR — adopted by the UN General Assembly on December 16, 1966; in legal force since March 23 1976 — guarantees right to life, freedoms of religion, speech and assembly, the right to vote, and to due process and fair trial. Seventy-four nations have signed the Covenant and 168 have formally ratified it, thereby becoming Covenant parties. Responsibility for monitoring Covenant compliance falls to the United Nations Human Rights Committee — a body of the UN’s Human Rights Council — which reviews periodic state reports on the Covenant’s implementation. States typically report once every four years.

Israel — one of the first state parties to the ICCPR — submitted its 4th Periodic Report in the fall of 2013. The Committee issued “concluding observations” on Israel’s report on October 28, 2014, along with a set of follow-up questions. Under Committee rules, Israel was asked to reply to these questions within one year of the Committee’s concluding observations — by November 1, 2015. A response is not mandatory.

As of this date, Israel appears not to have responded to the committee’s request.

Key among the committee’s concerns — expanded upon in the audio interview below with committee chair Cees Flinterman, a Dutch jurist — is Israel’s position on Covenant applicability. Israel argues that the Covenant does not apply to the Occupied Palestinian Territories.

Listen to my conversation with Professor Flinterman (apologies for the bad Skype audio).

Israel’s position on Covenant applicability in the occupied West Bank is a study in having your cake and eating it too. “Israel believes that the Convention, which is territorially bound, does not apply, nor was it intended to apply, to areas beyond a state’s national territory,” Israel states in paragraphs 45-48, pp. 11, 12 of its Fourth Report.

However, Israel presumably applies the Covenant to the estimated half million Israeli citizens living and working in settlements throughout “Area C” — the largest of three West Bank areas created under the terms of the 1993/94 Oslo Accord — where Israel exercises full civil and military control, and where Jewish residents enjoy all the rights, privileges and duties of any other Israeli living behind the Green Line, in “Israel Proper.”

Indeed, by fully integrating what the international community considers illegal Jewish settlements into the broad sweep of Israeli civil and political structure, Israel exercises de facto sovereignty throughout the West Bank — although it’s happy not to say so, much less annex these lands.

In contrast, as far as the 2.5 million Palestinians surrounding these settlements are concerned — most of them in Oslo Areas A and B; an estimated 150,000 in Area C — Israel deems the land “extraterritorial,” thus non-applicable under the Covenant.

The Committee voices concern over Israel’s position on Covenant applicability in its response to Israel’s 4th Periodic Report:

Item 5 (a): “The State party should … Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context … and review its legal position so as to acknowledge the extraterritorial application of the Covenant … In this respect, the Committee reiterates and underscores that the Covenant applies with regard to all conduct by the State Party’s authorities or agents adversely affecting the enjoyment of rights enshrined in the Covenant by persons under its jurisdiction regardless of the location.”

Might one conclude that Israel is not acting in good faith by extending Covenant protections to Israelis living in the settlements, but not to their far more numerous Palestinian neighbors?

Professor Flinterman is diplomatic:

“Well, that, of course we haven’t said. But what we have highlighted is that the Covenant should be interpreted in good faith. Then if you do that, there’s no other conclusion than the conclusion drawn by the International Court of Justice and the human rights treaty bodies … Of course, functioning in a diplomatic or political arena, sometimes, indeed, you need to read between the lines.”

Flinterman’s understanding is that Israel does indeed apply the Covenant to Jewish-only settlements in Oslo Area A. “You would think that that already undermines the position of Israel [on the Covenant’s non-applicability in the Occupied Territories] , but Israel has been very adamant, very strict and very clear in its opinion,” he says.

Israel’s position on Covenant applicability is echoed by the US, in apparent defense of its own situation at Guantanamo, where Washington’s detainees are denied ICCPR protections.

“It is indeed the position of the United States that the human rights covenants — including the Covenant on Civil and Political Rights — do not have extraterritorial applicability. So in that sense, Israel and the United States are of the same opinion,” Flinterman says.

The GPM [Green Planet Monitor] has asked Israeli authorities whether the Covenant does indeed apply to Jewish communities in Area C settlements such as Ariel and Ma’ale Adumim. An answer has yet to be received.

Regarding Israel’s overall Covenant performance, Flinterman is equally diplomatic. “That in itself is to be praised,” Flinterman says, regarding Israel’s steady willingness to submit reports of any sort. However, by the end of the interview, he confirms: “It’s clear; there’s no doubt that Israel is one of the countries in the Western world with serious human rights problems.”

Other compliance issues the Committee has asked Israel to address:

Item 7: “The Committee … is also concerned that the Jewish and non-Jewish population are treated differently in several regards and that the State party’s domestic legal framework maintains a three-tiered system of laws affording different civil status, rights and legal protection for Jewish Israeli citizens, Palestinian citizens of Israel and Palestinian residents of East Jerusalem.”

Asked to confirm the Committee’s view that Israel “maintains a three-tiered system of laws,” Flinterman stated: “Yes. Yes. Yes indeed. Yes.”

Might a three-tiered system of laws be considered a key defining characteristic of apartheid under the Rome Statute, I asked? Flinterman’s reply:

“You know that in some other documents prepared by United Nations functionaries, special rapporteurs — and I’m thinking of the report of the Special Rapporteur … what’s his name … my colleague at Leiden University? — [Dr. John Dugard] has indeed … he is in considering very much the legal system in Israel as similar to the apartheid system in South Africa. But the Human Rights Committee has not used those words.”

Continuing our conversation, Item 9 of the Committee’s report states:

“The Committee is concerned at the resumption of the policy of punitive demolitions in the West Bank since July 2014. It is also concerned about the discriminatory zoning and planning regime regulating the construction of housing and structures by Palestinians in Area C of the West Bank and by Palestinian Bedouins in the central West Bank … that makes it almost impossible for them to obtain building permits, while facilitating the State party’s settlements in the Occupied Palestinian Territory … The Committee is further concerned at the demolition and forcible transfer of Bedouins residing in Area C …”

and Item 9 (a), (b) and (c):

“The State party should … Immediately put an end to conducting punitive demolitions … Refrain from implementing evictions and demolition orders based on discriminatory planning policies … [and] Desist from any actions that may facilitate or result in forcible transfer and forced evictions.”

Asked to elaborate on Israel’s punitive demolition policy, Flinterman confirms: “Such demolitions are fully contrary with the human rights of individuals under the Covenant.”

Flinterman also confirms that Israel carries out punitive demolitions and “forcible transfer” in occupied territory, and that both are grave crimes under the 4th Geneva Convention — “Exactly, yes, yes,” Flinterman says — all the while reiterating that these conclusions were based on NGO submissions the Committee has received, rather than on its direct own investigation.

Regarding Israel’s blockade of Gaza, Item 12 of the Committee’s conclusions on Israel’s 4th Periodic Report states:

“The State party should … Lift its blockade of the Gaza Strip, insofar as it adversely affects the civilian population and provide unrestricted access for the provision of urgent humanitarian assistance and construction materials needed for civilian reconstruction efforts.”

Flinterman expands on the Gaza situation in our conversation:

“The Human Rights Committee is basing itself on the obligations of Israel under the Covenant on Civil and Political Rights,” Flinterman says. “These are all those over whom Israel has effective control. That’s also the case for the people living in the Gaza Strip, as long as Israel is maintaining its blockade. And it’s for that reason that the Committee calls on Israel to end, to lift the blockade. And it is qualified, as you may see, with the words “insofar as it adversely affects the civilian population,” and insofar it restricts the access for provision of urgent humanitarian assistance. That leaves open blockade for other purposes, but not insofar as the blockade would affect the basic rights under the Covenant on Civil and Political Rights.”

Is Israel meting out collective punishment through its Gaza blockade? Again, Flinterman is diplomatic. Such assessments are not part of the Human Rights Committee’s mandate, he states, adding: “Indeed, I would say, if you would [consider] a different perspective, and that is humanitarian law perspective, those would be the words that I would use myself … collective punishment, which is not allowed under international humanitarian law.”

The Committee’s response to Israel’s 4th Periodic Report also expresses concern about Israel’s use of torture:

Item 14: “The State party should explicitly prohibit torture, including psychological torture, and cruel, inhuman or degrading treatment … [and] … remove the notion of “necessity” as a possible justification for the crime of torture.”

Item 15: “The Committee is concerned at reports of use of torture and other ill-treatment in the State’s detention facilities, including widespread, systematic and institutionalized ill-treatment of Palestinian children.”

Asked to elaborate on Israeli use of torture, Flinterman says: “The Committee was truly and deeply worried about it. It’s an issue where it relates to juveniles, to children detained in Israeli prisons, without any respect for the rights that are included in the Covenant on Civil and Political Rights … It was our impression, both four years ago and last year, that Israel does not respect the rights of these young people. It’s certainly a matter of great concern, where urgent action should be taken by the Israeli authorities.”

Finally, on the topic of violence committed by Israeli settlers against Palestinians in Oslo Area C, the Committee states:

Item 16: “The Committee is concerned at acts of violence perpetrated by the State party’s settlers against Palestinians and their property in the West Bank, including East Jerusalem …”

Listen to Professor Cees Flinterman reviewing these points. Click on the SoundCloud link above.

This post first appeared on David Kattenburg’s site, Green Planet Monitor.

David Kattenburg

David Kattenburg is a Winnipeg-based radio/web broadcaster and science educator.

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2 Responses

  1. kalithea on November 9, 2015, 12:08 am

    Well it’s confirmed. Israel is an Apartheid State violating the rights of a nation of millions of people. So where are the sanctions? Oh, that’s right, the U.S. now pisses on human rights law as well and has the power to veto.

    This means that Israel and it’s loving friend have no right to preach to any other country but are screwing every other country in the world that signed onto International legislation by pretending to be above the law, protecting each other and nullifying the vote of every other country. Niiiiiiice.

    So we live in a lawless, devolving world thanks to these two bastards.

  2. CigarGod on November 9, 2015, 10:14 am

    Smartly done by both interveiwer and guest.
    Being diplomatic but very clear makes the report more likely to be absorbed.
    Howver, do I read correctly that the committee isn’t all that concerned with torture of adults?

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