By: Prof. Curtis F.J. Doebbler*.
Children and women are among the most vulnerable to human rights abuses during armed conflict and occupation. As a people under occupation for over sixty years this is particularly true of Palestinian children and women.
This paper examines Israel’s treatment of Palestinian children and women in the West Bank and Gaza Strip. It also describes the international law providing for the rights of Palestinian children and women, using selected examples to illustrate the application of the law. The paper begins by briefly describing the context of the situation in Palestine, especially those aspects of the situation in which Palestinian children and women live that have a bearing on the international laws that are applicable.
II. The Context:
The situation of women and children in Palestine is characterized by serious and widespread, reliably attested allegations of violations of fundamental rights. Moreover, many of these violations have lasted over sixty years subjecting generations of Palestinian children and women to inhumane treatment and effectively condemning them to a situation in which they cannot achieve their potential for development. The extended nature of the oppression of the Palestinian people under such terrible conditions is significant evidence that these conditions have been created so as to impose conditions of life on them that are calculated to bring about the physical destruction of the Palestinian people at least in part.
On 30 September 2009, the United Nations General Assembly adopted yet another resolution on the protection of children and women in armed conflict that “demands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and children,” especially from sexual violence. The same resolution, however expressed concern that so little progress has been made to date in addressing this problem. No place on earth has perhaps been such a pointed example of the Security Council’s concern as Palestine where the situation of women and children is frequently cited as among the most sever due to the more than sixty years of oppressive occupation. The irony of the Security Council’s statement is this body’s own failure to take effective action that contributes to ending the occupation.
The overriding legal characteristic of the plight of Palestinian children and women is that of a situation of armed conflict and occupation. This situation means that both international human rights law and international humanitarian law apply. This is the starting point for describing the human rights abuses suffered by Palestinian children and women.
A. Armed Conflict and Occupation
The occupation of Palestine is often considered to have begun after the 1967 war. This assumption is based largely on the questionable legality and legitimacy of the United Nations’ handling of this situation. The Security Council’s decision demanding a ceasefire after the 1967 war and the General Assembly’s decision to create two separate states on the territory inhabited by Palestinians twenty years earlier both give the impression that Israel only violated Palestinians’ right to self-determination when it occupied the West Bank and Gaza Strip subsequent to the 1967 war. A better legal date for the start of the occupation is 14 May 1948 when Israel declared a Jewish state. This is the date on which Israel legally took Palestinian land and acted in a manner that made it clear it intended to deny the Palestinian people the right to self-determination. It is also since this date that the gravest human rights abuses have taken place.
Whatever the starting date, Palestine has been under occupation for an extended period of time. This means that the ultimate authority responsible for ensuring the rights of Palestinian women and children rests with the occupying power, Israel. But not only is Israel’s occupation of Palestine likely illegal under international law from the start, it has also been oppressive to the extent that human rights are widely violated. The violations include the denial of freedom of movement, the right to an adequate standard of living, the right to be free from arbitrary detention, the right to be free from torture and inhumane treatment, the right to appropriate living conditions, the right to work, the right to health, the right to education, and the right to self-determination.
Almost immediately after Israel’s unilateral declaration that it was forming a Jewish state on Palestinian territory, the violations of Palestinians’ human rights intensified caused by the violence that erupted as well as Israeli policies. Arab nations that had opposed the creation of a Jewish state on territory inhabited by Arab Palestinians objected to Israel’s creation and invoked their armed forces to protect the Palestinian people and their right to self-determination. The Arab forces were however repelled by the Israeli army with its significant western backing. Israel then proceeded to ‘secure’ its new state by oppressively occupying parts of the territory that the same United Nations General Assembly resolution that suggested an Israeli state, had suggested be the territory of a Palestinian state.
During the violent creation of Israel many Palestinians were uprooted. This ‘Nakba’ caused an estimated 750,000 Palestinians to flee or be expelled from their own land. Others became second-class citizens in their own homeland. The significance of these initial events that cleansed Palestine of some of its most patriotic and educated citizens can hardly be over estimated. It can almost be compared to the centuries of slavery suffered by Africans.
The dire situation of the Palestinians was quickly recognized by the United Nations that in May 1948 created the ‘Office of the Mediator in Palestine’ and named Count Folke Bernadotte, the Swedish President of the Red Cross who was respected for his neutrality, as the first mediator. The hope this inspired quickly came to an end when Count Bernadotte was shot and killed while conducting negotiations with the Israeli’s in territory controlled by Israel. This opened the way to the naming of an American Mediator. Although the mediator served in his individual capacity under the auspices of the United Nations, this move indirectly extended America’s role from a staunch supporter of the Israeli state to a would-be neutral mediator. This problem persist until today and is a major reason why, despite numerous condemnations of Israel’s violations of Palestinians fundamental human rights, little effective action has been taken to protect Palestinians.
Specific references in UN documents to the applicability of international humanitarian and human rights law took time. Only after the 1967 armed conflict did the Security Council and General Assembly take steps to encourage respect for this law. In June 1967 the Security Council adopted a resolution calling for all parties to the conflict to respect international humanitarian law. In December 1968, the General Assembly also explicitly recognized the importance of the application of international human rights law to the Palestinians, including the right to return, and created a Special Committee to Investigate Israeli Practices Affecting Human Rights of the Population of the Occupied Territories. In 1975 the General Assembly also created the Committee on Inalienable Rights of the Palestinian People. The two committees have since been joined by the additional UN bodies of the Division for Palestinian Rights, a Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, and numerous other special mechanisms and non-governmental organizations (NGOs) who have documented more than six decades of human rights abuses.
The Organizations of the Islamic Conference (OIC) and the League of Arab States have also taken action concerning Palestine and condemning the serious and widespread violations of Palestinians’ human rights by Israel. For example, in 2009 the League established a Fact-Finding Committee on Gaza, chaired by former UN Special Rapporteur on Palestine and Professor of Law John Dugard, which duly issued a report a few months later that found Israel to be in violation of a significant number of human rights.
The violations begun in 1948 continue in Palestine today. There are now an estimated three million Palestinians living outside Palestine, many unable to return to their own homeland. These people have not only had their right to self-determination violated with all of the estimated 7 million Palestinians living in Palestine, but also their human right to return to their own country. Other human rights violations persisting until today have been documented by the reports of the UN, League of Arab States, the OIC, and numerous NGOs mentioned above.
These continuing violations include that have been reliably reported by credible Palestinian, Israel and international human rights bodies include, among others, the following:
• killing of unarmed civilians;
• denial of due process/fair trial;
• arbitrary arrest and detention;
• torture and ill-treatment;
• lack of remedies for violations of human rights/impunity;
• forced evictions and destructions of property/homes;
• forcible return of refugees/asylum-seekers;
• intentional destruction of residential houses, water wells, water tanks, agricultural land, and greenhouses by the Israeli Military in Gaza;
• inflicting conditions of life that constitute collective punishment;
• denying an estimated 1.5 million people living in Gaza access to basic needs such as adequate of food, medicines, water and electricity supplies.
• preventing the entry of raw construction materials into Gaza for more than two years.
• preventing fuel supplies into Gaza, excluding limited amounts of cooking gas, since 10 December 2008;
• continuing to close the Beit Hanoun (Erez) crossing to Palestinian civilians wishing to travel to the West Bank and Israeli for medical treatment, trade or social visits;
• creating conditions of life that cause poverty and unemployment rates of approximately 80% and 60% respectively in Gaza and the West Bank;
• continuing to prevent the entry of spare parts for water networks and sewage systems to Gaza, with the consequence that losses incurred to this sector are estimated at US$ 6 million;
• continuing to impose additional access restrictions on international diplomats, journalists and humanitarian workers seeking to enter the Gaza, including preventing the representatives of several international humanitarian organizations from entering Gaza;
• denying family visits to at least 900 Palestinian prisoners in Israeli jails; and,
• attacking Palestinians fishing along the Gaza coast.
These examples of ongoing violations are not new or ‘one off’, they are similar to those that have been continuing for sixty years.
There are also violations that are especially targeting and/or affecting women and children disproportionately. The actions that constitute these special violations of women and children human rights are described in the following two sections.
B. Allegations of Violations against Women
It is an injustice to describe the extensive nature of the violations of women’s rights in a short contribution such as this when much more comprehensive descriptions have been done by others. Instead, because this contribution focuses on the role of the law in identifying and reacting to violations of women and children’s human rights, only a summary of the violations recorded by numerous inter-governmental organizations that have described the situation of the human rights of women in Palestine. The following are some of the most serious violations of human rights recently documented by various credible reports:
• killing of women;
• detaining women in degrading conditions whereby they are deprived of food, water and access to sanitary conditions;
• intentional placing of women in dangerous proximity to active military weapons in Gaza;
• increased levels of anemia in pregnant women in Gaza (because of the denial of access to adequate nutrition);
• intentional displacement of women in Gaza;
• causing serious mental suffering to women by the disproportional use of force in Gaza;
The above documented actions show the severe affects of the violence perpetrated by Israel against Palestinian women. It is not by coincidence that the international community has agreed to outlaw such actions as violations of international law, nor perhaps that it has for so many years failed to protect Palestinian women.
C. Allegations of Violations against Children
Children often suffer the most during armed conflict and oppressive occupation. Palestine is no exception.
In a recent report on the world’s children, UNICEF lists Palestinian children within the occupied territories as experiencing physical and psychological aggression to an extent greater than any other children on earth. And UNDP recently concluded, as concerns Palestinian refugees, that the “Palestinian case, more than any other, illustrates the hardships faced by refugees when conflict is protracted, insecurity is rampant and local economic opportunities are almost non-existent.”
Other violations of children’s human rights include:
• arbitrary killing of children;
• inhuman treatment and torture of children;
• lack of due process/fair trial for children;
• arbitrary violence against children;
• arbitrary arrest of children;
• violations of children’s right to health by creating conditions causing disease;
• denying humanitarian relief to children;
• interfering with children’s ability to learn by the blockade on Gaza and attacks against schools.
The suffering of children as a consequence of violence and war is well documented. The above acts against children indicate a very serious threat to Palestinian children. And again it is not by coincidence that the international community has agreed to outlaw such actions as violations of international law.
D. Allegations of Genocide
The allegations of genocide that have been levied against Israel are often not distinct from the reports of the longstanding serious and widespread violations of human rights already mentioned, but are in fact an accumulation of these violations.
The Goldstone report, for example, found that Israel intentionally deprived Palestinians in Gaza of “their means of sustenance, employment, housing and water,” their “freedom of movement and their right to leave and enter their own country,” limited their “access to courts of law and effective remedies” to such an extent as to amount to persecution. Many of these practices have been proven to have been continuing for more than 60 years. Such continuity in action is legally significant to determining the intention necessary for genocide is present.
Among the actions relevant to a determination of whether genocide is being committed is the extent of the killing of Palestinians. The fact that B’Tselem, an Israeli NGO, reports that the Israeli killing of Palestinians is increasing annually is evidence of conscious action by the Israeli government. So too is evidence of the ongoing or increasing nature of many of the other violations mentioned above.
The fact that many of these violations are supported by Israeli laws also evidences the intention of Israel. For example, the Israeli Law of Return from 1950 and the Israeli Citizenship Law from 1952 both allow Jews to freely immigrate to Israel and gain citizenship, but excludes indigenous Arab Palestinians who were forced to flee their homes since 1947. These laws indicate that Israel is acting with discrimination against Palestinians through a policy that has been agreed upon by the Israeli authorities. Such policies provide strong evidence of the intention necessary to prove genocide.
III. The Law and Violations of the Human Rights of Women and Children by Israel:
The above situations constitute violations of the human rights of Palestinians, especially children and women, by Israel. Responsibility for these violations may rest both upon the Israeli authorities as well as on the individuals who have actually carried out, ordered, or, in some cases, had knowledge of the violations. The rules for state responsibility are long and well-established in international law. The rules for individual responsibility are newer, but through the jurisprudence of the ad hoc international criminal tribunal and the International Criminal Court, have already become established to the degree that there can be no doubt that individuals who commit violations of international law may be prosecuted.
1. State and Individual Responsibility
Traditionally international law is invoked by a finding of state responsibility. This means, in the words of the International Law Commission’s respected Draft Articles on the Responsibility of States for Internationally Wrongful Acts, that “