A/HRC/12/48
page 79
300. Contemporary interpretation of the Hague Regulations has taken a progressive view on
the scope of their application. The International Court of Justice, when concluding that Uganda
was the occupying Power in the Ituri region in the Democratic Republic of the Congo, also held
that Uganda’s obligation to “restore, and ensure, as far as possible, public order and safety”
included “the duty to secure respect for the applicable rules of international human rights law
and international humanitarian law”.179
301. In relation to the application of human rights law during the military operations and to the
connected events, the Mission wishes to briefly address four issues of legal significance.
302. The first is the impact of the inauguration in 1995 of limited Palestinian self-government
and the evacuation of the Gaza Strip by Israel in 2005 on Israel’s international obligations.
United Nations human rights treaty bodies have continued to hold Israel responsible for
implementing its human rights treaty obligations in the Occupied Palestinian Territory after the
establishment of Palestinian self-government bodies.180 Those bodies have not drawn any
distinction between Gaza and the West Bank in this regard, the Occupied Palestinian Territory
being regarded as a single unit. In its Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice
succinctly addressed the question by noting that, under the International Covenant on Economic,
Social and Cultural Rights, Israel is “under an obligation not to raise any obstacle to the exercise of
such rights in those fields where competence has been transferred to Palestinian authorities”.181
In a recent report about Gaza, nine special procedures of the Human Rights Council considered
that the unilateral disengagement from the Gaza Strip does not relieve Israel “from complying
with its human rights obligations towards the population of that territory; Israel remains bound to
the extent that the measures it adopts affect the enjoyment of human rights of the residents of the
Gaza Strip.”182
303. Israel most recently argued before the Committee against Torture that it no longer had
human rights obligations under the Convention with regard to Gaza due to the effect of the 2005
“disengagement”. In rejecting the argument, the Committee stated “the State party maintains
control and jurisdiction in many aspects on the occupied Palestinian territories.”183 The Mission
agrees that transferring powers and functions to self-governing bodies does not exempt Israel
from its obligations to guarantee human rights to people within its jurisdiction or under its
effective control. Israel would also have a duty to refrain from actions that obstruct efforts by
Palestinian self-governing bodies to guarantee the enjoyment of human rights in the Occupied
Palestinian Territory and should facilitate that action.
304. A second issue relates to the human rights obligations of the Palestinian Authority, the de
facto authority in the Gaza Strip and other political and military actors. As non-State actors, the
179
Case concerning Armed Activities…, para. 178.
For instance, in its 2003 concluding observations, the Committee on Economic, Social and Cultural Rights
reiterated “its regret at the State party's refusal to report on the occupied territories” (E/C.12/1/Add.90, para. 15).
180
181
Legal Consequences…, para. 112.
182
A/HRC/10/22, para. 20.
183
“Concluding observations of the Committee against Torture” (CAT/C/ISR/CO/4, para. 11).
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