The Applicability of International Human Rights Law to the Occupied Palestinian Territories

The Israeli Position

Since Israel’s occupation of the West Bank and Gaza Strip in 1967, successive Israeli government have rejected the applicability of human rights treaties to the Occupied Palestinian Territories (OPT) on the grounds that the relationship between occupier and occupied is fundamentally different from that between a government and its people during peacetime. The signing of the Interim Agreements between Israel and the Palestinians in 1995, thereby providing for the preparatory transfer of a total of 14 civil spheres to a Palestinian National Authority (PNA), has been used by Israel as one further ground to reject the applicability of international human rights law. Furthermore the dominant tendency of the Israeli High Court of Justice rulings has been that of the non-application of international law to the OPT. However since this would imply that rights would not be applied where safeguards would be needed the most, this position has been rejected by the majority of the international community, United Nations (UN) bodies and legal experts.

The Applicability of Customary International Human Rights Law

Customary human rights norms are applicable in all situations, including times of war and peace, even in the absence of a binding treaty. Furthermore, they apply not just to persons living under the jurisdiction of their own national authority, but also to “persons living in territories under belligerent occupation”. As noted by the International Court of Justice (ICJ) in the Barcelona Traction case, obligations derived from the principles and rules concerning the basic rights of the human person are obligations which are owed towards the international community as a whole (also known as erga omnes obligations). In this regard, the majority of scholars have considered the human rights provisions of the UN Charter are considered to embody customary law and therefore to be universally applicable, including the prohibition against torture, certain basic due process guarantees and the principle of non-discrimination. It has also been suggested that other principles such as permanent sovereignty over natural resources and self- determination may also have attained this status.

The Applicability of Conventional Human Rights Law

Many international HR conventions to which Israel is a state party, such as the International Convention on the Elimination of All Forms of Discrimination, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the International Convention on Civil and Political Rights stipulate that the obligations under these conventions do not apply only to the territorial area of a specific state, but to all persons brought under the jurisdiction or effective control of that state. This has been upheld by the European Court of Human Rights in the Loizidou case, which stated that the existence of a partly autonomous area in an occupied territory does not affect the overall responsibility of the occupying power if the latter exercises effective overall control of the territory. Despite the signing of the Interim Agreements, it remains evident that Palestinians do not exercise sufficient degree of control or authority in the OPT as to equal or supersede that of Israel or free it of its international responsibility. While non- state actors, such as the PNA, must also be expected to respect human rights norms, Israel continues to exercise de facto authority in the OPT. Therefore it is bound to apply these human rights conventions and instruments and remains answerable to all of them. Furthermore, as the ICJ emphasised in the Legal Consequences of the Construction of a Wall in the OPT case, where competence has been transferred to the PNA, Israel remains “under an obligation not to raise any obstacle to the exercise of such rights”.

The position of the international community is that with the ratification of international Human Rights instruments, Israel must continue to be held responsible under its human rights conventional obligations in the OPT to the extent that it continues to exercise jurisdiction in the OPT. Therefore, other than its duty to implement international customary human rights law, UN treaty bodies, independent experts and working groups charged with monitoring the human rights situations within their mandates, have all repeatedly reaffirmed that Israel is considered legally responsible to implement human rights treaty provisions in the OPT, and to furnish reports as required by the relevant conventions with respect to these territories.

Human Rights Law During Times of Armed Conflict and Belligerent Occupation

The applicability of the regime of international humanitarian law (IHL) during an armed conflict does not preclude the application of international human rights law. Various UN bodies, reports and declarations have all affirmed that fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict, and that these instruments may therefore be invoked to protect human rights at all times. Equally, in the Legal Consequences of the Construction of a Wall in the OPT case,  the ICJ stated clearly that as an occupying power that has subjected them to its territorial jurisdiction for over 37 years, it remains responsible for fulfilling its obligations stemming from human rights conventions in that territory.  Furthermore, the International Committee of the Red Cross (ICRC) has charged is that the two branches of law are complementary.

Certain human rights treaties such as the ICCPR, acknowledge the necessity to restrict certain human rights in time of public emergency threatening the life of a nation and permit governments to derogate from certain rights therein. However, UN treaty monitoring bodies charged with implementing these conventions have stressed that derogations are subject to the principles of necessity and proportionality.  This signifies that only essential measures may be taken and only “to the extent strictly required by the exigencies of the situation.” They also may not be discriminatory or contravene other rules of international law, including rules of IHL.

Furthermore, those treaties do not permit derogation from articles concerning fundamental principles of international human rights law. This attests to the fact that a number of non-derogable principles were intended to apply in emergency situations such as situations of armed conflict or belligerent occupation, and that they must be applied to all without discrimination based on race, political opinion or other status. These include the right not to be arbitrarily deprived of life; the prohibition on torture and slavery; recognition before the law; and freedom of thought, conscience and religion amongst others.   

Lastly, the principle of the applicability of human rights law is also reflected in IHL provisions. For example, the preamble of the Hague Convention with Respect to the Laws and Customs of War on Land, states that parties to a conflict remain under the protection and governance of “…the principles of the law of nations derived from the usages established among civilised people [and] from the laws of humanity”. This section of the preamble, otherwise known as the Martens Clause, is considered declaratory of a customary international law and has been restated by both the Four Geneva Conventions and its two Additional Protocols.