A/HRC/23/21
3.
To fulfil the mandate to the extent possible under the above-mentioned
circumstances, the Special Rapporteur completed a mission to the Gaza Strip from 1 to 3
December 2012. The aim of the mission was to investigate issues pertaining to the
economic and social rights of civilians in Gaza, which have received considerable attention
given the comprehensive Israeli blockade in place since mid-2007, which continues to
impose unacceptable hardships on the civilian population. During his mission, the Special
Rapporteur also investigated the effects of a major military attack by Israel, named
Operation “Pillar of Defense”, which was conducted from 14 to 21 November 2012.
4.
There have been several general developments occurred since the previous report
relevant to the mandate was submitted to the Human Rights Council. Perhaps the most
significant development occurred on 29 November 2012, when the General Assembly
voted to recognize Palestine as a non-member observer State, a status that is a step on the
path to the realization of the collective and inalienable right of self-determination that
belongs to the Palestinian people as a whole.
5.
The Special Rapporteur was invited to deliver the opening address at an
international conference devoted to the theme of “Expanding the legal paradigm for
Palestine” on 8 and 9 May 2013 at Birzeit University involving distinguished experts from
several countries. Given that he was unable to attend the event in person, the Special
Rapporteur addressed the audience via Skype. In his presentation, he emphasized the limits
of international humanitarian law international humanitarian law in the context of
prolonged occupation, a concern that he expressed in previous reports. Three overlapping
legal regimes were distinguished:
(a)
International humanitarian law international humanitarian law, as contained
in the Geneva Convention relative to the Protection of Civilian Persons in Time of War
(fourth Geneva Convention) and Additional Protocol I: useful for identifying violations
associated with behaviour of the occupying Power towards the civilian population of the
occupied territory, including construction of settlements, collective punishment, targeted
assassinations, diversion of water, excessive force, conditions of detention and
imprisonment. There is an additional deficiency here arising from the failure of parties to
the Geneva Conventions to uphold the duty set forth in common article 1 “to respect and to
ensure respect for the present Convention in all circumstances”. If a pattern of persistent
violation is present and sustained for a period of years, as in the case of the occupation of
Palestine by Israel, steps should be taken to encourage compliance. Such a collective
responsibility by all contracting parties to “repress grave breaches” is made clearer in
Protocol I, articles 86 and 91, a treaty that has the status of customary international law.
(b)
Oslo framework: allocation of administrative and governmental
responsibilities to areas A (Palestinian), B (joint Palestinian-Israeli) and C (Israeli) that
creates a different legal regime, given the different standards of protection and access to
law accorded to Israeli settlers and Palestinians living in the West Bank. The Oslo process,
with its five-year timeline for the resolution of final status issues, constituted a humane
acknowledgement that a belligerent occupation of a society had to be ended. United
Nations and European Union reports indicate that the Palestinian presence in area C (which
covers 61 per cent of the land but only 4 per cent of the Palestinian population) is under
constant pressure and threat of elimination. It is estimated that 350,000 Jewish settlers in
about 200 settlements and outposts are living in area C, having appropriated the preferred
land, situated mainly on high ground, making use of disproportionate amounts of water
exploited from local aquifers, at the expense of the Palestinian population. In other words,
the Oslo formula has facilitated additional encroachments on Palestinian territory that
violate the obligation under the fourth Geneva Convention on the Occupier to refrain from
altering the nature of the occupied country or appropriating its resources.
4
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