Ask HRW (Israel and Palestine) 8 (w/ Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967) – Annexation, International Law, Occupation, Rights, and Settlements

by | August 18, 2020

Omar Shakir, J.D., M.A. works as the Israel and Palestine Director for Human Rights Watch. He investigates a variety of human rights abuses within the occupied Palestinian territories/Occupied Palestinian Territories or oPt/OPT (Gaza and the West Bank, including East Jerusalem) and Israel. He earned a B.A. in International Relations from Stanford University, an M.A. in Arab Studies from Georgetown University’s School of Foreign Affairs, and a J.D. from Stanford Law School. He is bilingual in Arabic and English. Previously, he was a Bertha Fellow at the Center for Constitutional Rights with a focus on U.S. counterterrorism policies, which included legal representation of Guantanamo detainees. He was the Arthur R. and Barbara D. Finberg Fellow (2013-2014) for Human Rights Watch with investigations, during this time, into the human rights violations in Egypt, e.g., the Rab’a massacre, which is one of the largest killings of protestors in a single day ever. Also, he was a Fulbright Scholar in Syria.

Professor S. Michael Lynk is the current (7th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (March, 2016 to Present). He is an Associate Professor at the Faculty of Law, Western University, in London, Ontario, who works in one of the most important legal and investigative positions in the history of rights and law reportage for the United Nations on this issue of Israel and the occupied Palestinian territories. 

Language of the oPt/OPT is recognized in the work of the OHCHRAmnesty InternationalOxfam InternationalUnited NationsWorld Health OrganizationInternational Labor OrganizationUNRWAUNCTAD, and so on. Some see the Israeli-Palestinian issue as purely about religion. Thus, this matters to freethought. These ongoing interviews explore this issue in more depth.

Here we continue with the 8th part in our series of conversations with coverage in the middle of March to the middle of April for the Israeli-Palestinian issue. With the deportation of Shakir, this follows in line with state actions against others, including Amnesty International staff member Laith Abu Zeyad when attempting to see his mother dying from cancer (Amnesty International, 2019a; Zeyad, 2019; Amnesty International, 2020), United States Congresswoman Rashida Tlaib and United States Congresswoman Ilhan Omar who were subject to being barred from entry (Romo, 2019), Professor Noam Chomsky who was denied entry (Hass, 2010), and Dr. Norman Finkelstein who was deported in the past (Silverstein, 2008). Shakir commented in an opinion piece:

Over the past decade, authorities have barred from entry MIT professor Noam Chomsky, U.N. special rapporteurs Richard Falk and Michael Lynk, Nobel Peace Prize winner Mairead Maguire, U.S. human rights lawyers Vincent Warren and Katherine Franke, a delegation of European Parliament members, and leaders of 20 advocacy groups, among others, all over their advocacy around Israeli rights abuses. Israeli and Palestinian rights defenders have not been spared. Israeli officials have smearedobstructed and sometimes even brought criminal charges against them. (Shakir, 2019)

Now, based on the decision of the Israeli Supreme Court and the actions of the Member State of the United Nations, Israel, he, for this session, works from Amman, Jordan. Similarly, Lynk remains prevented from carrying out the full capacities of the position based on barring from entry.

*Interview conducted on May 13, 2020. The previous interview conducted on April 19, 2020.*

Scott Douglas Jacobsen: To begin, this is a 3-way conversation with S. Michael Lynk and Omar Shakir. We are going to talk about annexation and an overview of the Israel-Palestine issue (Jacobsen, 2020a). On May 1, Michael, you released a press release (United Nations Human Rights Office of the High Commissioner, 2020) that was based around some of the annexation ongoing, which is based on a proposal from the White House (White House Staff, 2020). Also, the outcome would be akin to, or would be, Bantustans (The Editors of Encyclopaedia Britannica, 2019). The terms used by you, phrasing, “Palestinian Bantustan, an archipelago of disconnected islands of territory” (United Nations Human Rights Office of the High Commissioner, 2020). Can you expand on some of that and the implications for the lives of Palestinians and rights?

Professor Michael Lynk: This stems, most immediately, from the proposals in the Trump Peace to Prosperity plan (White House Staff, 2020) released at the end of January 2020, which calls for, among other things, the annexation by Israel of 30% of the West Bank, including much of the Jordan Valley and all of the 240 or more settlements (BBC News, 2020a; United Nations Human Rights Office of the High Commissioner, 2019). Obviously, the ones already in East Jerusalem are annexed, but 225 to 230 in the West Bank (Collard, 2012). This includes not only those who are close to the Israeli border, the seamline, and the separation wall, but also those who are quite deep into Palestinian territory. They create fingers of annexation and sovereignty, which would make an archipelago of what the Palestinians would be left with – to have a “state.”[1]

The important point to make about the annexation – that is, the formal de jure[2] annexation by Israel as outlined in the Trump plan and, apparently, as agreed to by the coalition agreement between Mr. Netanyahu and his new partner, Benny Gantz – is that it changes everything and it changes nothing (BBC News, 2020b).

It changes everything in the sense that Israel is now planning to step forward and make a formal annexation of about 1/3rd of the West Bank including all of the settlements in the occupied territory (Federman, 2020a; Zion, 2020; Federman, 2020b; The Associated Press). Eventually, this would mean the application of Israeli domestic law to the settlements instead of the formulation of the forms of special laws applying to the settlements (Amnesty International, 2019b).[3]

So, this changes everything in the sense that it is another form of annexation in East Jerusalem in 1980 and the Syrian Golan Heights in 1981 (UNISPAL, 1997; Jacobsen, 2020c; ECF, 2019).[4] Neither of which were recognized by the international community.[5] Both annexations were condemned in U.N. Security Council resolutions (United Nations, 1980a; United Nations, 1980b).[6],[7] This new annexation will now require the international community, particularly Europe and other powerful players in North America and other places in the Western world, to express a stance and, ideally, to take sanction measures[8] against Israel in the same way with sanction measures applied to Russia and its annexation of Crimea in 2014.[9],[10] This changes everything, as I said, in the formal renunciation of the Oslo process[11] and the end to any meaningful Palestinian state[12].

But it also changes nothing. The lives of Palestinians either in Area C (OCHAOPT, n.d.) under Israeli civil and security control or the Palestinians in Areas A and B in the towns and cities primarily in the center of the West Bank don’t change at all (BBC News, 2019). As before, they won’t have access to settlement roads (B’Tselem, 2004). As before, they will continue to lose land to settlement and military use by the Israeli occupation (Tahhan, 2017). As before, they still will not be able to vote in elections to form the government that ultimately controls their day to day decisions of their lives, i.e., the Israeli government (Krauss, & Daraghmeh, 2019).[13] What has happened over the last 50 years has been the steady process of a de facto annexation, where Israel took many different steps to alienate property from the Palestinians in the West Bank and offered enormous incentives for Israelis and immigrants to Israel to move into these settlements, which geographically hemmed in the Palestinians (El-Ad, 2020).

What the Palestinians have been left with are archipelagos of fragmented lands, there are 165 different islands of land in the West Bank, meaning that the Palestinians have very restricted freedom of movement (B’Tselem, 2017). When you have restricted personal freedom of movement, it also means restricted freedom of movement with respect to trading, importing goods, and finding external markets for their products as well (European Commission, 2020). So, you have a stunted economy with the restricted freedom of movement (B’Tselem, 2017; European Commission, 2020). All in all, what may happen or probably will happen sometime after the first of July will be a seismic change in the Middle East with the endorsement of a formal annexation. Yet, in many other ways, it will remain a continuation of life as it has been for the Palestinians as it has been.

Jacobsen: Omar, from the point of view of Human Rights Watch, how is this continuation going on without much or any consequences for the Israeli government?

Omar Shakir: In many ways, the Israeli push for annexation stems from the failure of the international community to sufficiently use its leverage to stop systematic Israeli rights abuse.[14] The reality here goes back decades. Israel has continued to build settlements, which are a clear violation of international humanitarian law[15], and have continued to further entrench a discriminatory system that treats Palestinians living in the same territory separately and unequally in virtually every aspect of life from legal status, to freedom to move, to freedom to build, to security of the legal status, to their ability to access water and electricity (Human Rights Watch, 2010). Annexation, in many ways, would merely formalize what has been the de facto reality where the Israeli government controls the entire area between the Mediterranean Sea and the Jordan River and rules over Palestinians unequally compared to Jewish Israelis and systematically suppresses them (Human Rights Watch, 2019b; Human Rights Watch, 2018; Human Rights Watch, 2019a; Human Rights Watch, 2020a). The reality is the peace process for half the life of the occupation has effectively become a fig leaf for this discriminatory Israeli rule. The international community allowed itself to be sucked into the narratives of temporary occupation, Palestinian self-governance, Israeli egalitarian democracy, and the peace process; all of which are smoke screens to a very apparent reality, where 6.6 million or so Palestinians live in this area between the Jordan River and the Mediterranean Sea, as do 6.6 or so Jewish Israelis, with Palestinians treated unequally in virtually every aspect of life.

The international community should use annexation as a wake-up call to both understand the reality of what is going on, on the ground, as well as to adopt the human rights based measures regularly taken in other parts of the world with abuses this grave. A peace process assumes that the problem is one that negotiations, as opposed to human rights measures, can cure. It is the wrong diagnosis for the underlying problem here. I think it’s beyond time in the international community to shift to action and accountability in holding Israeli authorities, as well as Palestinians when they abuse rights, to account for their serious abuses (Human Rights Watch, 2020b; Human Rights Watch, 2017).

Lynk: If I can add to that.

Jacobsen: Please.

Lynk: I don’t think that we would be here today discussing annexation here in 2020 if the world had imposed meaningful accountability measures in 1980 with the annexation of Jerusalem or in 1981 with the annexation of the Syrian Golan Heights (ECF, 2019; UNISPAL, 1997; Jacobsen, 2020c). We have virtually all the laws that we need to be able to assess that this occupation is illegal. The settlements are illegal.[16],[17],[18] The human rights violations – the various forms of collective punishment[19],[20], the blockage of Gaza[21],[22], the denial of self-determination[23] – are illegal; the location of the separation wall, is illegal. What we need is not more laws, we need accountability (The Palestinian Information Center, 2019; Jacobsen, 2020d; United Nations General Assembly, 2019).[24] It has been sorely missing in all of this. What I often note, particularly in the last weeks when discussing the issue of annexation with international audiences, is how swift the international community was to bring in meaningful and significant sanctions against Russia in 2014 with respect to its annexation of Crimea[25] and Sevastopol[26] (European Council/Council of the European Union, 2020; Popovici, 2018). Even though, these sanctions didn’t have the endorsement of the United Nations because of the Russian veto[27] in the Security Council (Chappell, 2014). Yet, there was a very swift movement to degrade political relations with Russia, to bring in targeted sanctions on specific individuals, to bring meaningful collective sanctions which significantly impacted on the Russian economy, and to ban goods coming out of Sevastopol and Crimea going to the world market (Gutterman, Grojec, & RFE/RL’s Current Time, 2018). It was done quickly. And it wasn’t done without cost to countries in Europe, particularly Eastern Europe, based on their dependence on Russian aid.

Here, we are talking about Israel, a country with 6% of the Russian population[28], which is heavily dependent on trade and with cultural ties to Europe and many parts of the world, including the United States. There have never been meaningful sanctions brought in to oppose Israeli policy. Even though, there are volumes of Security Council and General Assembly resolutions against the various forms of illegality that are integral to this 53-year-old occupation. As a result, there is a strong sense of impunity among the Israeli political leadership.

Today, we have come the point where almost 10% of the Israeli Jewish population are living in settlements in East Jerusalem and the West Bank, which has led to the pro-annexation lobby, a critical mass of the population (Myre, & Kaplow, 2016). When I did a nose count of the 120 Knesset members elected in the April election, I could only count 18 members of the Knesset who are opposed to the settlements and who would end them if they were in a position of power. 18 out of 120 are in that particular position. So, there is enormous domestic political support. Primarily because the ordinary Israeli doesn’t wake up and worry, “Will I get a travel visa if I wanted to travel to Europe or somewhere else?” Or, “Are goods all of the sudden more expensive?” Because there are many trade privileges that Israel enjoys. Israel has had the best of both worlds to continue with the annexation and all the while mouthing the words of a peace process and “let’s negotiate.” All the while extending the occupation because of the enormous number of settlements and settlers now in the occupied territory.

No Occupying Power engaged in creating civilian settlements, particularly at the pace that Israel has, can be serious about wanting to end its occupation and realizing the self-determination of the occupied population.

Jacobsen: How does the lack of accountability internationally degrade international institutions like the United Nations when particular principles are proposed and then not acted upon? This is to both of you.

Shakir: I think it is a universal pattern. When impunity reigns and states commit serious violations of international law without consequence, it is not only a green light for them to double down on the policies, but also signals to other actors that the principles that undergird the international system are selective and apply differently based on how much power you wield. The experience in Israel and Palestine, as well as the more universal phenomena, show that this really poses a fundamental challenge to international institutions, including U.N. bodies and international courts. A litmus test for any international institution is how principled they are and whether they are able to apply the same standards universally to all actors (Jacobsen, 2019). For example, the High Commissioner of Human Rights earlier this year took a strong step in releasing the database given the mandate to her through the Human Rights Council.[29],[30],[31] Similarly, I think the prosecutor of the International Criminal Court took an important step in concluding her examination into the situation in Palestine with a recommendation for a formal investigation to be opened. I think it is incumbent upon states and others that are concerned about the credibility of international law and institutions to ensure these a sorts of measures, of the variety that were foreseen by some of the foundational treaties when it comes to failure to comply with international norms, are adhered to. Otherwise, they are not worth the paper that they are written on.

Lynk: What I think is very damaging is the concept of legal exceptionalism, when the whole body of laws that we have created for the modern world after 1945 are ignored, our modern rules-based international order was meant to create a dense network of rights and responsibilities that international states had towards one another as one of the surest guarantees to prevent the repetition of annexing land, creating wars, and producing great human suffering.[32]

The world has not been perfect in the aftermath of 1945. However, we have had a much greater, longer run of political and economic stability thanks to this strong network of rules and responsibilities that the international community has signed onto. If a country that belongs to the rules-based order says, “These particular rules do not apply to me. The Fourth Geneva Convention does not apply to the occupied territories,” then this is cherry-picking international law; and, international law is not a menu a la carte. We have to listen to the 2004 Advisory Opinion of the International Court of Justice[33], and what the Security Council[34] has said in numerous resolutions with respect to our occupation.

What we are winding up doing – particularly in the eyes of those who pay close attention to the Israeli and Palestinian conflict – are two parallel ways in which state defiance is dealt with, when other would-be renegades of international law see that state exceptionalism is being tolerated for Israel, they will want to see if they can have the same incentives and the same legal exceptionalism applies to them as well. There are very few things that are as uncontroversial in international law as the legal fact that Israeli rule over the Palestinians is occupation and, therefore, the Fourth Geneva Convention applies. Accordingly, based on Article 49 of the Fourth Geneva Convention, the Israeli settlements created in the occupied territory are profoundly illegal under international law.

Indeed, the Israel settlements are a presumptive war crime under the 1998 Statute of Rome (Amnesty International, 2019c; International Criminal Court, 1998).Also, annexation is illegal under international law. The vast majority – I’d say over 99% – of international lawyers, international legal scholars, and for the diplomatic ministries of almost all states around the world accept that. But the difficulty, the refusal, has been the unwillingness to hold Israel accountable to all the standard norms that apply to an occupation.

We see this in the backsliding on international legal norms applying to an occupation on the part of the United States. In early November 2019, Secretary of State, Mike Pompeo, stated that the US State Department came to the conclusion that the Israeli settlements were not illegal under international law (Lee, 2019).[35] He said, ‘We have done a 40-page study.’ To the best of my knowledge, this study has not been released publicly. I certainly think it would be a document that international lawyers and scholars would have a field day in picking apart its findings and reasoning, which may be why it is not publicly released. He made the point that in other cases, ‘Settlements in occupied territory may be illegal or the annexation of occupied territory may be illegal, but not in this case involving Israel.’ You can see how the growth of international law exceptionalism[36] becomes a malignant stain on the whole body of a rules-based international order when clear rules can be undermined by powerful parties saying that they no longer apply to them.

Jacobsen: Some of the premises floating around are the non-transparency with Mike Pompeo in the 40-page report. Another is in the language used around some of the titles of things. So, Judea and Samaria rather than Area C (Israel Ministry of Foreign Affairs, 2015; BBC News, 2009). It is both the non-transparency and the part of actors for states and then the labelling things only among one’s own party and national group, where there is a well-established set of titles and terms with specific meanings based on a consensus internationally. That’s another important issue to touch upon for this too. For Human Rights Watch, what has their take been on some of this labelling unique to Israel and some allies compared to the generally accepted international community consensus?

Shakir: I think the shifts and changes in terminology are a reflection of underlying policies on place on the ground. One example to take is Israel has a formal separation policy between the West Bank and the Gaza Strip aimed at ensuring minimal travel between the two areas (Human Rights Watch, 2019a). It has resulted in significant changes. Part of it is an effort to break apart the idea of what is a single territorial entity under international law, to make Gaza its own stand-alone entity, not part of the larger equation in dealing with Israel-Palestine. Even the term “Gazans,”[37] often not with malintent, is part of the practice, it is reducing the people who live there to being tied to their specific geographic areas as opposed to having an identity common with those in the West Bank and East Jerusalem. Similar with terminology when it comes to the West Bank, part of Israel’s strategy to maintain settlements in the West Bank in perpetuity is to convey the idea of this area as the core part of their idea of Israel (Human Rights Watch, 2017). The change in the terminology is part of advancing that strategy. You see this in Jerusalem with the Temple Mount[38] as a reference to Al-Aqsa Mosque compound[39], which is, again, underlying a certain narrative.[40] A valid historical one, but it is only a part of the entire story there (Hammer, 2011). I think terminology is, of course, always contested everywhere, but, certainly, is used by the Israeli government as a way to muddy-up what are relatively straightforward notions of Palestine being a single territorial entity in terms of its connections between different areas and its historical roots (United Nations, 2012a; United Nations, 2012b).

Lynk: One of my most favourite passages on political terminology comes from George Orwell who wrote in the late 1940s on the necessity of those in power of finding euphemisms and bland words that will diminish the scar or the tragedy unfolding before our eyes.[41] When you look to uncover modern terminology being used by Israel with respect to the occupation, they don’t use the word occupation; they will use the word “administered territories” or “disputed territories” (BBC News, 2009; Israel Ministry of Foreign Affairs, 2015b). Settlements are no longer “settlements” in the phraseology at the Fourth Geneva Convention. They are Jewish neighbourhoods on biblical land. It is not the West Bank. It is Judea and Samaria. It is not an apartheid wall built largely in the West Bank. It is a fence. All of these choices of terminology are meant to diminish the horror of the scale of human rights abuses that are going through an occupation, where one national group is clearly dominant over another.

Where it has annexationist tendencies, and where there is no link between what they are doing and what international law requires them to wind up obeying, so, the use of this selective terminology in everyday political discourse and, certainly, in the arguments that they make legally to international diplomatic capitals or to courts such as the International Court of Justice or the International Criminal Court. It is all meant as a way to mask, to minimize, or to disguise the horror that we as civilians in democratic societies in the 21st century would normally want to feel if the true reality of what is unfolding in the occupied territories was said in immediate, urgent, and truthful adjectives and verbs.

Jacobsen: Another sociological variable, often, on the periphery of the commentaries, though central to the lives of many is religious identity and ethnic heritage. On the issue of religious identity, something that we note in Michael and I’s own country, Canada, is anti-Muslim sentiment or Islamophobia.[42],[43] On the ethnic heritage front, there is simply anti-Arab sentiment in addition to anti-Semitic sentiment as well. How do these points of contact play into the media portrayals from the occupied Palestinian territories and from Israel when there are certain flare-ups in the overall conflict?

Shakir: Look, I think there is a tendency when looking at conflicts around the world to reduce it to intrinsic ethnic, religious, or other sorts of intrinsic differences, and less of a desire to see conflicts for what they often are at core: access to land, resources, and rights, often, between different groups of people with various political leaders who often use difference to bolster their standing. I think the reality in Israel and Palestine is one such conflict. This is not some thousand-years-old ethnic and religious conflict, but one about land, resources, and rights, primarily. The other elements are certainly not irrelevant. Some policy positions can be informed by views that are bigoted or racist. We’ve certainly heard in the last rounds of Israeli elections statements by political parties that were bigoted. We have seen some anti-Semitic statements by Palestinian officials (Schrader, 2020; Nirenstein, 2020; Algemeiner Staff, 2020). But that is not what the heart of the conflict is about. There’s a significant underlying issue of discrimination and very severe discrimination and repression on account of identity, but, at the core, it is less about how the groups view one another and more about securing rights and privileges to land and resources by one group over another. While it manifests in one group having more of those things than another group, it is less about the tensions or animosities between members of those groups and more about struggles over rights, land, and resources.

Lynk: I would echo what Omar has said. For many people in the world, it reflects some of the reporting coming from the region. It has the appearance of being a religious or an ethnic conflict, or simply a neighbourhood squabble between irreconcilable people living next to one another. Often, the conflict is being presented as being intractable. In some of the reporting, it is seen as a tragedy of two people having equal rights to the land. In my view, I think this is what Omar was saying as well. Ultimately, this is a struggle over land and over justice. The ethnic veneer and the religious veneer explains some of the conflict, but the best explanation of the conflict goes to your understanding of the lack of rights and the lack of justice by one side caused by one side subjugating the other.

Yet, I am heartened when I am asked, “Is there any hope for the future?” I am heartened by the civil society efforts: Israeli civil society actors, Palestinian civil society, regional civil society, and international civil society. They want the same rights. They rely on the same international documents to proclaim the importance of human rights as a measuring stick to determine what is going on with that. I think Israeli and Palestinian civil society organizations are one of the important bridges to the future to building two societies living side-by-side, where there will be prosperity, reconciliation, equality; that they can wind up living productively with each other. It is the best hope and, in many ways, the only hope for the conflict being resolved. As Omar said earlier on, there is an equal number of Palestinian Arabs and Israeli Jews living between the Mediterranean Sea and the Jordan River. They are going to have to find some way to live in equality, whether two states or one state as a confederation. I do not purport to have a blueprint for that. It will have to be anchored on human rights law and democratic institutions to enable them to live side-by-side or an end to this conflict to occur. Any forms of a future depending on subjugation or domination with one group over another will sooner or later fall apart simply because people will not live under subjugation or domination for long periods of time.

Jacobsen: Any closing statements – either of you?

Lynk: Only this, I don’t think Omar would be doing this work – I don’t think I would be doing his work – without feeling some ingrained optimism amid all the struggles that we wind up seeing in front of us for this particular conflict. What gets us up every morning is our belief that international law and international morality can play, should play, and, ultimately, will play a decisive role in bringing justice and peace and prosperity to the 14 million Palestinians and Israeli Jews who live in the area. Through that lens, we can see a meaningful path to get to the future. Otherwise, I think that we would slit our wrists a long time ago. Let me speak for myself, although, I think Omar may agree with this as well; it is only going to happen through actively bending the arc of history towards justice; which means a meaningful peace and finding a modus operandi where the two people can live in harmony and equality via the decisive action from the international community. All by itself, this 53-year-old occupation will not die by old age. Israel can probably sustain the status quo long into the future. Only though the international community becoming motivated by international civil society to take decisive steps that would wind up bringing this subordination and domination to an end. Until that happens, we will see more of the same and more of these bitter human rights violations occurring, which are a credit to no people and, certainly, not to the Israeli leadership and, in its own way, the Palestinian leadership either.

Jacobsen: Omar, Michael, thank you for your time.

Shakir: Thanks so much, Scott.

Lynk: Thank you, Scott.

Previous Sessions (Chronological Order)

Interview with Omar Shakir – Israel and Palestine Director, Human Rights Watch (Middle East and North Africa Division)

HRW Israel and Palestine (MENA) Director on Systematic Methodology and Universal Vision

Human Rights Watch (Israel and Palestine) on Common Rights and Law Violations

Ask HRW (Israel and Palestine) 1 – Recent Events

Ask HRW (Israel and Palestine) 2 – Demolitions

Ask HRW (Israel and Palestine) 3 – November-December: Deportation from Tel Aviv, Israel for Human Rights Watch Israel and Palestine Director

Ask HRW (Israel and Palestine) 4 – Uninhabitable: The Viability of Gaza Strip’s 2020 Unlivability

Ask HRW (Israel and Palestine) 5 – The Trump Peace Plan: Is This the “The Deal of the Century,” or Not?

Ask HRW (Israel and Palestine) 6 – Tripartite Partition: The Israeli Elections, the International Criminal Court (ICC), and SARS-CoV-2/COVID-19

Ask HRW (Israel and Palestine) 7 – New Heights to the Plight and the Fight: Covid-19, Hegemony, Restrictions, and Rights


Ask HRW (Israel and Palestine) Addendum: Some History and Contextualization of Rights

Other Resources Internal to Canadian Atheist

Interview with Dr. Norman Finkelstein on Gaza Now

Extensive Interview with Gideon Levy

Interview with Musa Abu Hashash – Field Researcher (Hebron District), B’Tselem

Interview with Gideon Levy – Columnist, Haaretz

Interview with Dr. Usama Antar – Independent Political Analyst (Gaza Strip, Palestine)

Interview with Wesam Ahmad – Representative, Al-Haq (Independent Palestinian Human Rights Organization)

Extensive Interview with Professor Richard Falk – Fmr. (5th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967

Extensive Interview with Professor John Dugard – Fmr. (4th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967

Extensive Interview with S. Michael Lynk – (7th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967

Conversation with John Dugard, Richard Falk, and S. Michael Lynk on the Role of the Special Rapporteur, and the International Criminal Court & Jurisdiction

To resolve the Palestinian question we need to end colonialism

Trump’s Colonial Solution to the Question of Palestine Threatens the Foundations of International Law

Dr. Norman Finkelstein on the International Criminal Court


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[1] “Dr. Norman Finkelstein on the International Criminal Court” (2020) in which Finkelstein stated:

On the UN question, Palestine is officially defined as a non-member observer state. That’s its status. So, it is not a member of the General Assembly, but it is classified as a state: non-member observer state. I think the only other entity that has that definition is the Vatican. The Vatican also has non-member observer state status. Whether or not Palestine is a state, the essence comes down to the following: technical, under what is called the Montevideo criteria, a state has four characteristics. It has a territory. It has a population. It has an effective government. And it has the capacity to engage in foreign relations to sign treaties and things like that. Those are the four technical criteria of a state. The issue that has been the most contentious between the two sides is the effective government. 

See Jacobsen (2020b).

[2] “Legal English: “De Facto/De Jure”” (2012) states:

Today’s phrases, “de facto” and “de jure,” (Pronunciation: dee fak-toh/di joo r-ee: Origin: Latin) are closely related concepts. De facto means a state of affairs that is true in fact, but that is not officially sanctioned. In contrast, de jure means a state of affairs that is in accordance with law (i.e. that is officially sanctioned). Most commonly, these phrases are used to describe the source of a business or governmental leader’s authority, but they apply to a wide variety of situations. Here are some example sentences that use the phrases:

  • “Our country is going through some very difficult times. We have an elected prime minister, but he has no actual power. Instead, the general who sits at the head of the military is the de facto ruler of the nation.”
  • “I know that, de jure, this is supposed to be a parking lot, but now that the flood has left four feet of water here, it’s a de facto swimming pool.”
  • “We understand that these are the de facto bounds of your manufacturing facility, but what do the official land records and surveys show? Is that mountain of scrap rubber over there encroaching on anyone else’s property?”
  • “The rest of the world considers your company to be a U.S. corporation, but where is your de jure jurisdiction of incorporation? If it’s somewhere offshore, we might have a P.R. issue on our hands.”

As you can see, de facto refers to situations that are true for practical reasons, whereas de jure refers to formal, official status of the matter.

See Washington United in St. Louis: School of Law (2012).

[3] “Chapter 3: Israeli Settlements and International Law” (2019b) states:

Israel’s policy of settling its civilians in occupied Palestinian territory and displacing the local population contravenes fundamental rules of international humanitarian law.

Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”. 

The extensive appropriation of land and the appropriation and destruction of property required to build and expand settlements also breach other rules of international humanitarian law. Under the Hague Regulations of 1907, the public property of the occupied population (such as lands, forests and agricultural estates) is subject to the laws of usufruct. This means that an occupying state is only allowed a very limited use of this property. This limitation is derived from the notion that occupation is temporary, the core idea of the law of occupation. In the words of the International Committee of the Red Cross, the occupying power “has a duty to ensure the protection, security, and welfare of the people living under occupation and to guarantee that they can live as normal a life as possible, in accordance with their own laws, culture, and traditions.”

The Hague Regulations prohibit the confiscation of private property. The Fourth Geneva Convention prohibits the destruction of private or state property, “except where such destruction is rendered absolutely necessary by military operations”.

As the occupier, Israel is therefore forbidden from using state land and natural resources for purposes other than military or security needs or for the benefit of the local population. The unlawful appropriation of property by an occupying power amounts to “pillage”, which is prohibited by both the Hague Regulations and Fourth Geneva Convention and is a war crime under the Rome Statute of the International Criminal Court and many national laws.

Israel’s building of settlements in the West Bank, including in East Jerusalem, does not respect any of these rules and exceptions. [Emphasis added.]

See Amnesty International (2019b).

[4] “The Status of Palestine” (1997) states:

The 1967 war, which resulted in the occupation by Israel of East Jerusalem and the Palestinian territories, ended the armistice demarcation line between the eastern and western sectors but reopened with new vehemence the debate over the two competing claims. Israel, which annexed East Jerusalem in 1980, considers that “Jerusalem, whole and united, is the capital of Israel”, and wants the City to “remain forever under Israel’s sovereignty.” Its de facto control on the ground has enabled it to invest vast resources and efforts into changing the physical and demographic characteristics of the City. The Israeli claim to Jerusalem, however, has not been recognized by the international community which rejects the acquisition of territory by war and considers any changes on the ground illegal and invalid. On the other hand, the Palestinians have claimed East Jerusalem as the capital of a future independent State of Palestine to be established in the territories occupied since 1967. [Emphasis added.]

See UNISPAL (1997).

[5] Lynk, here, references the overwhelming consensus of the international community of the status of illegality of the Israeli settlements, of Israeli occupation, of Israel defined as an Occupying Power, and annexation in the West Bank and East Jerusalem as illegal under international law. Thusly, the international community does not recognize the 1980 and 1981 annexations by Israel.

[6] U.N. Resolution 478 came with 14 votes in favour, none against, and 1 abstention (The United States of America), and states, in full:

The Security Council,

Recalling its resolution 476 (1980),

Reaffirming again that the acquisition of territory by force is inadmissible,

Deeply concerned over the enactment of a “basic law” in the Israeli Knesset proclaiming a change in the character and status of the Holy City of Jerusalem, with its implications for peace and security,

Noting that Israel has not complied with resolution 476 (1980),

Reaffirming its determination to examine practical ways and means, in accordance with the relevant provisions of the Charter of the United Nations, to secure the full implementation of its resolution 476 (1980), in the event of non-compliance by Israel,

1. Censures in the strongest terms the enactment by Israel of the “basic law” on Jerusalem and the refusal to comply with relevant Security Council resolutions;

2. Affirms that the enactment of the “basic law” by Israel constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem;

3. Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent “basic law” on Jerusalem, are null and void and must be rescinded forthwith;

4. Affirms also that this action constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

5. Decides not to recognize the “basic law” and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem and calls upon:

(a) All Member States to accept this decision;

(b) Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City;

6. Requests the Secretary-General to report to the Security Council on the implementation of the present resolution before 15 November 1980;

7. Decides to remain seized of this serious situation.

See United Nations (1980a).

[7] United Nations Resolution 476, in full, states:

The Security Council,

Having considered the letter of 28 May 1980 from the representative of Pakistan, the current Chairman of the Organization of the Islamic Conference, as contained in document S/13966 of 28 May 1980,

Reaffirming that acquisition of territory by force is inadmissible,

Bearing in mind the specific status of Jerusalem and, in particular, the need for protection and preservation of the unique spiritual and religious dimension of the Holy Places in the city,

Reaffirming its resolutions relevant to the character and status of the Holy City of Jerusalem, in particular resolutions 252 (1968) of 21 May 1968, 267 (1969) of 3 July 1969, 271 (1969) of 15 September 1969, 298 (1971) of 25 September 1971 and 465 (1980) of 1 March 1980,

Recalling the Fourth Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War,

Deploring the persistence of Israel, in changing the physical character, demographic composition, institutional structure and the status of the Holy City of Jerusalem,

Gravely concerned over the legislative steps initiated in the Israeli Knesset with the aim of changing the character and status of the Holy City of Jerusalem,

1. Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem;

2. Strongly deplores the continued refusal of Israel, the occupying Power, to comply with the relevant resolutions of the Security Council and the General Assembly;

3. Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

4. Reiterates that all such measures which have altered the geographic, demographic and historical character and status of the Holy City of Jerusalem are null and void and must be rescinded in compliance with the relevant resolutions of the Security Council;

5. Urgently calls on Israel, the occupying Power, to abide by this and previous Security Council resolutions and to desist forthwith from persisting in the policy and measures affecting the character and status of the Holy city of Jerusalem;

6.Reaffirmsits determination in the event of non-compliance by Israel with this resolution, to examine practical ways and means in accordance with relevant provisions of the Charter of the United Nations to secure the full implementation of this resolution.

See United Nations (1980b).

[8] Lynk argued for this before. “Special Rapporteur on Situation of Human Rights in the oPt Presents Report to Third Committee – Press Release (GA/SHC/4273) (Excerpts)” (2019) states:

One of five mandate holders to present their findings, Michael Lynk, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, focused on the deepening humanitarian crisis in Gaza.  “This would properly be labelled a tragedy if I was reporting to you about a natural catastrophe and the ensuing scale of human suffering,” he said.  However, this is a human‑made disaster.  Israel’s now 12‑year blockade of Gaza is expressly prohibited under the Fourth Geneva Convention.

The will of the international community does not seem strong enough to compel Israel into compliance, he said.  “No country is as dependent on the support of the international community as Israel, yet Israel allows itself to defy the world as few dare.”  To ensure accountability, he advocated a complete ban on exports from illegal Israeli settlements, coupled with flight bans, refusing arms transfers and using universal jurisdiction to bring violators of international law to justice…

… Yet, Israel has demonstrated no accountability to address these actions, despite calls by the international community, by the 2019 Commission of Inquiry and by civil society.  Describing the 53‑year‑old occupation as the longest belligerent occupation in the modern world, he said the international community has demonstrated “great unwillingness” to impose any meaningful accountability on Israel for its permanent occupation and its serious violations of international law.

He said Israel has rightly assessed that the international community — particularly Western industrial nations — lacks the political will to compel an end to its impunity.

See UNISPAL (2019).

[9] In reference to “Europe and other powerful players in North America and other places in the Western world,” this contains a historical context important for comprehension here. The United Nations formed after the collapsed efforts of the League of Nations. With this, at the foundation of the United Nations on October 24, 1945, the Israeli-Palestinian issue set forth, which came in the wake of the Second World War, as primarily a war with involvement of the Western world and the Europeans. In fact, the issue runs back farther. See UNISPAL (n.d.).

[10] “Crimea profile” (2018) states:

In early 2014 Crimea became the focus of the worst East-West crisis since the Cold War, after Ukraine’s pro-Moscow president Viktor Yanukovych was driven from power by violent protests in Kiev.

Kremlin-backed forces seized control of the Crimean peninsula, and the territory, which has a Russian-speaking majority, voted to join Russia in a referendum that Ukraine and the West deem illegal.

See BBC News (2018).

[11] See Stone, R.S., Elath, E., Ochsenwald, W.L., & Sicherman, H. (2020).

[12] “67/19. Status of Palestine in the United Nations” states:

Reaffirming its resolution 3236 (XXIX) of 22 November 1974 and all relevant resolutions, including resolution 66/146 of 19 December 2011, reaffirming the right of the Palestinian people to self-determination, including the right to their independent State of Palestine

Reaffirming also its resolutions 43/176 of 15 December 1988 and 66/17 of 30 November 2011 and all relevant resolutions regarding the peaceful settlement of the question of Palestine, which, inter alia, stress the need for the withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem, the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the right to their independent State

emphasizing the need for a way to be found through negotiations to resolve the status of Jerusalem as the capital of two States

Recalling also its resolution 43/177 of 15 December 1988, by which it, inter alia, acknowledged the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988 and decided that the designation “Palestine” should be used in place of the designation “Palestine Liberation Organization” in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system,

Taking into consideration that the Executive Committee of the Palestine Liberation Organization, in accordance with a decision by the Palestine National Council, is entrusted with the powers and responsibilities of the Provisional Government of the State of Palestine

Reaffirming its commitment, in accordance with international law, to the two-State solution of an independent, sovereign, democratic, viable and contiguous State of Palestine living side by side with Israel in peace and security on the basis of the pre-1967 borders,

Bearing in mind the mutual recognition of 9 September 1993 between the Government of the State of Israel and the Palestine Liberation Organization, the representative of the Palestinian people,

Affirming the right of all States in the region to live in peace within secure and internationally recognized borders,

Commending the Palestinian National Authority’s 2009 plan for constructing the institutions of an independent Palestinian State

…Recognizing also that, to date, 132 States Members of the United Nations have accorded recognition to the State of Palestine

…1. Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967;

2. Decides to accord to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice;

3. Expresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations… [Emphasis added.]

See United Nations (2012).

[13] “Unable to vote, Palestinians shrug off Israel’s elections” (2019), in part, states:

MAS’HA, West Bank (AP) — Barhoum Saleh’s town is surrounded by Jewish settlements, the sign above his roadside mechanic shop is in Hebrew, most of his customers are Israeli and he needs an Israeli permit to visit the beach a half hour’s drive away.

But unlike his Jewish neighbors, he can’t vote in next week’s elections.

Saleh is among the 2.5 million Palestinians in the West Bank who have no voice in choosing Israel’s next government and no control over whether it decides to annex part or all of the occupied territory, as Prime Minister Benjamin Netanyahu has vowed to do . With the peace process having sputtered to a halt a decade ago, they also have little hope of getting a state of their own anytime soon. [Emphasis added.]

See Krauss & Daraghmeh (2019).

[14] One of the, or the, fundamental violation of international law comes in the form of Article 49 of the Fourth Geneva Convention. The Fourth Geneva Convention deals specifically with the protection of civilians in war zones as a humanitarian matter. You can observe some of the common phraseology defined within the context of the occupation in the Fourth Geneva Convention, which gets used throughout the discourse, e.g., “Occupying Power,” where the means “Israel” in the context of Israeli annexation and settlements. Article 49 states:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

See International Committee of the Red Cross (1949).

[15] See United Nations Security Council (2016).

[16] “Resolution 2334” states:

… Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions…

…Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace…

See United Nations Security Council (2016).

[17] “Resolution 465” states:

Taking note of the reports of the Commission of the Security Council established under resolution 446 (1979) to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, contained in documents S/13450 and Corr. 1 and S/13679…

Deploring the decision of the Government of Israel to officially support Israeli settlement in the Palestinian and other Arab territories occupied since 1967,

Deeply concerned over the practices of the Israeli authorities in implementing that settlement policy in the occupied Arab territories, including Jerusalem, and its consequences for the local Arab and Palestinian population…

…Drawing attention to the grave consequences which the settlement policy is bound to have on any attempt to reach a comprehensive, just and lasting peace in the Middle East…

… 6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;

7. Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;

8. Requests the Commission to continue to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, to investigate the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation, and to keep under close scrutiny the implementation of the present resolution…

See United Nations Security Council (1980).

[18] “Resolution 446” states:

Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East…

…Establishes a Commission consisting of three members of the Security Council, to be appointed by the President of the Council after consultations with the members of the Council, to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem…

See United Nations Security Council (1979).

[19] See International Middle East Media Center (2019).

[20] See Al-Haq (2015).

[21] “Gaza Strip: Blockade” (2020) states:

In autumn 2007 Israel declared the Gaza Strip under Hamas a hostile entity and approved a series of sanctions that included power cuts, heavily restricted imports, and border closures. In January 2008, facing sustained rocket assaults into its southern settlements, Israel broadened its sanctions, completely sealing its border with the Gaza Strip and temporarily preventing fuel imports. Later that month, after nearly a week of the intensified Israeli blockade, Hamas’s forces demolished portions of the barrier along the Gaza Strip–Egypt border (closed from Hamas’s mid-2007 takeover until 2011), opening gaps through which, according to some estimates, hundreds of thousands of Gazans passed into Egypt to purchase food, fuel, and goods unavailable under the blockade. Egyptian Pres. Hosni Mubarak temporarily permitted the breach to alleviate civilian hardship in Gaza before efforts could begin to restore the border.

In the years after the Israeli blockade on Gaza was instated, an organization known as the Free Gaza Movement made a number of maritime efforts to breach it. The first such mission—which consisted of a pair of vessels bearing medical supplies and some 45 activists—was permitted to reach Gaza in August 2008, and four missions in subsequent months were also successful. In May 2010 a flotilla bound for Gaza was the scene of a clash between activists and Israeli commandos in which 9 of the more than 600 activists involved were killed.

Under Mubarak, Egypt’s cooperation in enforcing the blockade was deeply unpopular with the Egyptian public. In May 2011, four months after a popular uprising in Egypt forced Mubarak to step down as president, Egypt’s interim government announced that it would permanently reopen the Rafah border crossing, allowing Palestinians to pass between Egypt and Gaza. About 1,200 people were allowed to cross the border daily, though it remained closed for trade. However, in the turmoil following the ouster of Egyptian Pres. Mohamed Morsi in the summer of 2013, traffic through the border crossing was reduced to 50 people per day because of security concerns and was later closed altogether.

After the PA took control of the Rafah border crossing in late 2017, Egypt began allowing 200 people per day to cross the border in May 2018. The border was closed briefly after the PA quit the Gaza Strip in January 2019, but it was reopened weeks later by Hamas. During this rare and prolonged easing of the border, tens of thousands of Gazans were reported to have permanently emigrated from the Gaza Strip.

After months of violence between Israel and Hamas in mid-2018, Israel began to ease restrictions on its blockade as a part of an effort to incentivize a more long-term cease-fire agreement between the two. In 2019 Israel allowed the flow of additional goods into and out of the territory, expanded the permitted fishing zone for Gazans to its largest extent in more than a decade, and began allowing thousands of Gazans to cross the border to work in Israel.

See The Editors of Encyclopaedia Britannica (2020).

[22] See Federman (2019).

[23] See UNISPAL (2006).

[24] “Situation of human rights in the Palestinian territories occupied since 1967” (2019) states:

…The key issues raised during the mission included the continued shrinking of civic space, the pervasive lack of accountability, especially in relation to the investigation and prosecution of hostilities in Gaza in 2014, home demolitions in the West Bank, in particular in East Jerusalem, the ongoing use of administrative detention and the detention of children, and the impact of various practices on the environment…

…Israel has demonstrated virtually no accountability for these actions despite calls by the international community and civil society for independent and transparent investigations into the incidents…

…Far too often, accountability has been applied by the international community in a selective and partisan fashion to many serious issues, reflecting a dispiriting mixture of design and indifference, collusion and apathy. On too many occasions, defiance has been ignored and outliers have been excused or appeased. This deficit of accountability erodes popular trust in the efficacy of international law, thereby jeopardizing a precious common good…

…The 52-year Israeli occupation of the Palestinian territory – Gaza and the West Bank, including East Jerusalem – is a bitter illustration of the absence of international accountability in the face of the systemic violations of Palestinian rights under human rights and humanitarian law. Accountability is the key to opening the titanium cage that is the permanent occupation, and its principled application is the best path to a just and durable settlement…

…The Court then elaborated upon the duty of accountability of the international community when a competent organ of the United Nations had issued a binding decision on the illegality of a situation…

…In a variety of forums, the United Nations has frequently called upon the international community to ensure accountability and to end impunity with respect to the Israeli occupation…

…In four major independent reports commissioned by the Human Rights Council since 2009, the constant theme has been the serious violations of human rights and humanitarian laws by Israel, the necessity to ensure Israeli accountability and the prevailing culture of exceptionalism…

…The General Assembly and the Human Rights Council have both accentuated the necessity for accountability by Israel, the occupying Power, in recent years…

…Impunity and the lack of accountability by Israel in its conduct of the occupation have also been addressed by the Secretary-General…

…The lack of accountability has also been a central concern of the United Nations High Commissioner for Human Rights…

…Of the 178 recommendations issued regarding accountability and access to justice, Israel had implemented 2, had partially implemented 8 and had not implemented 168 (90 per cent)…

…Much more can be said about the range of appropriate countermeasures that the international community has at its disposal to ensure accountability and an end to impunity regarding the Israeli occupation…

…It would realize that bold measures and the determination to enforce accountability in these circumstances would greatly improve the chances that the next obstinate occupier would not likely want to test its resolve…

See United Nations General Assembly (2019).

[25] See BBC News (2016).

[26] See Gragg & Volochine (2019).

[27] A single negative vote from one of the permanent members – China, France, Russia, the United Kingdom and the United States – of the Security Council would block a draft resolution. “Charter of the United Nations – Chapter V: The Security Council” states:

  1. Each member of the Security Council shall have one vote.
  2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
  3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

See United Nations (1945).

[28] Approximately 9,000,000 Israelis divided by about 145,000,000 Russians comes to about 6%.

[29] The illegal settlements database provided an insight into the contexts for a number of the illegal settlement-dealing businesses. This comes from another portion of the international effort for a transition from statements or reminders of rights and abuses of said rights, and more into the firm transition into the world of accountability tied to action, so as to make the statements of rights and abuses of said rights substantive rather than null and void. This became part of a previous session with Shakir, in which we stated:

Jacobsen: The U.N. also recently released a list of companies, 112 [Ed. Countries with companies on the listing (number of companies in parentheses per country): France (3), Israel (94), Luxembourg (1), Netherlands (4), Thailand (1), United Kingdom (3), United States of America (6) (U.N. Human Rights Council, 2020).], who are doing business on Israeli settlements in the West Bank (Nebehay, 2020; Federman, 2020; Federman & Keaten, 2020). What does this mean for this similar discourse of rights violations through the annexation of land? What are the particular types of rights violations in this reportage?

Shakir: The long-awaited release of the U.N. Database of Settlement Companies should really put companies on notice: to do business with illegal settlements is to aid in the commission of war crimes (U.N. Human Rights Council, 2020). Companies have hid for too long behind the idea of these issues as too controversial or complex as a way to excuse their direct contribution to rights abuses. The underlying reality is that settlements are not only a violation of the Fourth Geneva Convention and a war crime (Diplomatic Conference of Geneva, 1949; Amnesty International, 2019b). They also entail systematic abuses to the rights of Palestinians. Settlements are built on land confiscated, stolen, from Palestinians (Amnesty International, 2019b). In order to maintain the settlement enterprise, Israel has erected a two-tiered discriminatory system in the West Bank that treats Palestinians separately and unequally (Human Rights Watch, 2010). Companies that do business in settlements not only further entrench the illegal settlement enterprise, but they actually profit from the theft of Palestinian land and contribute to the further dispossession of Palestinians.  I think the release of this database is an important step towards ensuring transparency around these activities, but also towards protecting human rights, not only of Palestinians, but setting a precedent that can be used in other contexts to improve the standards around business and human rights.

See Jacobsen (2020e).

[30] See Federman (2020c), Federman & Keaten (2020), and Nebehay (2020).

[31] You can find the complete 112 out of the 188 companies who formally met the requirements for inclusion as follows:

Business enterprises involved in listed activities
No.Business EnterpriseCategory of listed activityState concerned
1Afikim Public Transportation Ltd.EIsrael
2Airbnb Inc.EUnited States
3American Israeli Gas Corporation Ltd.E, GIsrael
4Amir Marketing and Investments in Agriculture Ltd.GIsrael
5Amos Hadar Properties and Investments Ltd.GIsrael
6Angel BakeriesE, GIsrael
7Archivists Ltd.GIsrael
8Ariel Properties GroupEIsrael
9Ashtrom Industries Ltd.GIsrael
10Ashtrom Properties Ltd.GIsrael
11Avgol Industries 1953 Ltd.GIsrael
12Bank Hapoalim B.M.E, FIsrael
13Bank Leumi Le-Israel B.M.E, FIsrael
14Bank of Jerusalem Ltd.E, FIsrael
15Beit Haarchiv Ltd.GIsrael
16Bezeq, the Israel Telecommunication Corp Ltd.E, GIsrael B.V.ENetherlands
18C Mer Industries Ltd.BIsrael
19Café Café Israel Ltd.E, GIsrael
20Caliber 3D, GIsrael
21Cellcom Israel Ltd.E, GIsrael
22Cherriessa Ltd.GIsrael
23Chish Nofei Israel Ltd.GIsrael
24Citadis Israel Ltd.E, GIsrael
25Comasco Ltd.AIsrael
26Darban Investments Ltd.GIsrael
27Delek Group Ltd.E, GIsrael
28Delta IsraelGIsrael
29Dor Alon Energy in Israel 1988 Ltd.E, GIsrael
30Egis RailEFrance
31Egged, Israel Transportation Cooperative Society Ltd.EIsrael
32Energix Renewable Energies Ltd.GIsrael
33EPR Systems Ltd.E, GIsrael
34Extal Ltd.GIsrael
35Expedia Group Inc.EUnited States
36Field Produce Ltd.GIsrael
37Field Produce Marketing Ltd.GIsrael
38First International Bank of Israel Ltd.E, F  Israel
39Galshan Shvakim Ltd.E, DIsrael
40General Mills Israel Ltd.GIsrael
41Hadiklaim Israel Date Growers Cooperative Ltd.GIsrael
42Hot Mobile Ltd.EIsrael
43Hot Telecommunications Systems Ltd.EIsrael
44Industrial Buildings Corporation Ltd.GIsrael
45Israel Discount Bank Ltd.E, FIsrael
46Israel Railways Corporation Ltd.G, HIsrael
47Italek Ltd.E, GIsrael
48JC Bamford Excavators Ltd.AUnited Kingdom
49Jerusalem Economy Ltd.GIsrael
50Kavim Public Transportation Ltd.EIsrael
51Lipski Installation and Sanitation Ltd.GIsrael
52Matrix IT Ltd.E, GIsrael
53Mayer Davidov Garages Ltd.E, GIsrael
54Mekorot Water Company Ltd.GIsrael
55Mercantile Discount Bank Ltd.E, FIsrael
56Merkavim Transportation Technologies Ltd.EIsrael
57Mizrahi Tefahot Bank Ltd.E, FIsrael
58Modi’in Ezrachi Group Ltd.  E, DIsrael
59Mordechai Aviv Taasiot Beniyah 1973 Ltd.GIsrael
60Motorola Solutions Israel Ltd.BIsrael
61Municipal Bank Ltd.FIsrael
62Naaman Group Ltd.E, GIsrael
63Nof Yam Security Ltd.E, D  Israel
64Ofertex Industries 1997 Ltd.GIsrael
65Opodo Ltd.EUnited Kingdom
66Bank Otsar Ha-Hayal Ltd.       E, FIsrael
67Partner Communications Company Ltd.E, GIsrael
68Paz Oil Company Ltd.E, GIsrael
69Pelegas Ltd.GIsrael
70Pelephone Communications Ltd.E, GIsrael
71Proffimat S.R. Ltd.GIsrael
72Rami Levy Chain Stores Hashikma Marketing 2006 Ltd.E, GIsrael
73Rami Levy Hashikma Marketing Communication Ltd.E, GIsrael
74Re/Max IsraelEIsrael
75Shalgal Food Ltd.GIsrael
76Shapir Engineering and Industry Ltd.E, GIsrael
77Shufersal Ltd.E, GIsrael
78Sonol Israel Ltd.E, GIsrael
79Superbus Ltd.EIsrael
80Supergum Industries 1969 Ltd.GIsrael
81Tahal Group International B.V.ENetherlands
82TripAdvisor Inc.EUnited States
83Twitoplast Ltd.GIsrael
84Unikowsky Maoz Ltd.GIsrael
86Zakai Agricultural Know-how and inputs Ltd.GIsrael
87ZF Development and ConstructionGIsrael
88ZMH Hammermand Ltd.GIsrael
89Zorganika Ltd.GIsrael
90Zriha Hlavin Industries Ltd.GIsrael
Business enterprises involved as parent companies
No.Business EnterpriseCategory of listed activityState concerned
91Alon Blue Square Israel Ltd.E, GIsrael
92Alstom S.A.E, GFrance
93Altice Europe N.V.ENetherlands
94Amnon Mesilot Ltd.EIsrael
95Ashtrom Group Ltd.GIsrael
96Booking Holdings Inc.EUnited States
97Brand Industries Ltd.GIsrael
98Delta Galil Industries Ltd.GIsrael
99eDreams ODIGEO S.A.ELuxembourg
100Egis S.A.EFrance
101Electra Ltd.EIsrael
102Export Investment Company Ltd.E, FIsrael
103General Mills Inc.GUnited States
104Hadar GroupGIsrael
105Hamat Group Ltd.GIsrael
106Indorama Ventures P.C.L.GThailand
107Kardan N.V.ENetherlands
108Mayer’s Cars and Trucks Co. Ltd.EIsrael
109Motorola Solutions Inc.BUnited States
110Natoon GroupE, DIsrael
111Villar International Ltd.GIsrael
Business enterprises involved as licensors or franchisors
No.Business EnterpriseCategory of listed activityState concerned
112Greenkote P.L.C.GUnited Kingdom

See U.N. Human Rights Council (2020).

[32] “International law: Jurisdiction” (2019) states:

Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control. According to the territorial principle, states have exclusive authority to deal with criminal issues arising within their territories; this principle has been modified to permit officials from one state to act within another state in certain circumstances (e.g., the Channel Tunnel arrangements between the United Kingdom and France and the 1994 peace treaty between Israel and Jordan). The nationality principle permits a country to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in another state. Historically, this principle has been associated more closely with civil-law systems than with common-law ones, though its use in common-law systems increased in the late 20th century (e.g., the adoption in Britain of the War Crimes Act in 1991 and the Sex Offenders Act in 1997). Ships and aircraft have the nationality of the state whose flag they fly or in which they are registered and are subject to its jurisdiction.

The passive personality principle allows states, in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens. This principle has been used by the United States to prosecute terrorists and even to arrest (in 1989–90) the de facto leader of Panama, Manuel Noriega, who was subsequently convicted by an American court of cocaine trafficking, racketeering, and money laundering. The principle appears in a number of conventions, including the International Convention Against the Taking of Hostages (1979), the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The protective principle, which is included in the hostages and aircraft-hijacking conventions and the Convention on the Safety of United Nations and Associated Personnel (1994), can be invoked by a state in cases where an alien has committed an act abroad deemed prejudicial to that state’s interests, as distinct from harming the interests of nationals (the passive personality principle). Finally, the universality principle allows for the assertion of jurisdiction in cases where the alleged crime may be prosecuted by all states (e.g., war crimes, crimes against the peace, crimes against humanity, slavery, and piracy).

See Shaw (2019).

[33] “International Court of Justice Advisory Opinion Finds Israel’s Construction of Wall ‘Contrary to International Law’” (2004) states:

The International Court of Justice (ICJ), principal judicial organ of the United Nations, has today rendered its Advisory Opinion in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (request for advisory opinion).

In its Opinion, the Court finds unanimously that it has jurisdiction to give the advisory opinion requested by the United Nations General Assembly and decides by 14 votes to 1 to comply with that request.

The Court responds to the question as follows:

“A. By 14 votes to 1,

The construction of the wall being built by Israel, the occupying Power, in the occupied Palestinian territory, including in and around East Jerusalem, and its associated regime, are contrary to international law”;

“B. By 14 votes to 1,

Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the occupied Palestinian territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion”;

“C. By 14 votes to 1,

Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the occupied Palestinian territory, including in and around East Jerusalem”;

“D. By 13 votes to 2,

All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention”;

“E. By 14 votes to 1,

The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.”

See International Court of Justice (2004).

[34] See United Nations Security Council (2016), United Nations Security Council (1979), and United Nations Security Council (1980).

[35] “U.S. backs Israel on settlements, angering Palestinians and clouding peace process” (2019) states:

Pompeo said U.S. statements about the settlements on the West Bank, which Israel captured in 1967, had been inconsistent, saying Democratic President Jimmy Carter found they were not consistent with international law and Republican President Ronald Reagan said he did not view them as inherently illegal.

“The establishment of Israeli civilian settlements is not, per se, inconsistent with international law,” Pompeo told reporters at the State Department, reversing a formal legal position taken by the United States under Carter in 1978.

His announcement drew praise from Netanyahu, who said it “rights a historical wrong,” and condemnation from Palestinian negotiator Saeb Erekat, who said Washington was threatening “to replace international law with the ‘law of the jungle.’”

Palestinians argued the U.S. stance flouted international law. The international community views the transfer of any country’s civilians to occupied land as illegal under the Fourth Geneva Convention of 1949 and U.N. Security Council resolutions.

“The United States is neither qualified nor is authorized to negate international legitimacy resolutions and it has no right to give any legitimacy to Israeli settlement,” said Nabil Abu Rudeineh, a spokesman for Palestinian President Mahmoud Abbas.

The United States said its stance could prompt violence, warning Americans in the region to exercise greater vigilance because those opposing the move “may target” U.S. government facilities, private interests and citizens.

Jordan’s foreign minister, Ayman Safadi, said the policy change would have “dangerous consequences” for the prospects of reviving peace talks and called settlements “a blatant violation of international law.”

See Mohammed, Spetalnick, & Pamuk (2019).

[36] As noted by Lynk, one of the prime issues comes in the opposition to the universalism or universal application of international law to all member states of the United Nations without exception – hence, exceptionalism as a concern and universalism as a necessary ideal – to the actions of any Member State, wherein one exception creates the basis for other borderline ill-actors within the international community asking, “Why not me?” Universalism must be universal without exception to be “worth the paper that they are written on.”

[37] If you search this term in any of the search engines available, then you will find such use of the term as a common occurrence.

[38] For one example, see Israel Ministry of Foreign Affairs (2015a).

[39] For an opposing example, see United Nations Security Council (1982).

[40] Now, these discrepancies can raise questions about historicity of the titular claims or the reality of the claims to appropriation of a site based on particular historical narratives. BBC News in “Unesco passes contentious Jerusalem resolution” reported in 2016 on this issue:

Unesco’s executive board approved the Arab-sponsored resolution, which repeatedly refers to only the Islamic name for a hilltop complex which is also the holiest site in Judaism.

The site is known to Jews as the Temple Mount and Haram al-Sharif to Muslims.

The resolution caused Israel to freeze co-operation with Unesco last week.

The stated aim of the text was “the safeguarding of the cultural heritage of Palestine and the distinctive character of East Jerusalem”.

It criticises Israel’s activities at holy places in Jerusalem and the occupied West Bank.

But it is how it refers to the sites which prompted Israel to act against the cultural body.

While acknowledging the “importance of the Old City of Jerusalem and its walls for the three monotheistic religions”, the document refers to the sacred hilltop only by the name “al-Aqsa Mosque/al-Haram al-Sharif” (Noble Sanctuary).

It is the location of two Biblical Jewish temples and is flanked by the Western Wall, venerated by Jews as part of the original supporting wall of the temple compound.

Haram al-Sharif is also the place where Muslims believe the Prophet Muhammad ascended to Heaven, and is the third holiest site in Islam.

The draft refers to the precinct in front of the wall as “al-Buraq Plaza ‘Western Wall Plaza'” – placing single quote marks only around “Western Wall”, giving the name as it is known to Jews less weight than the one by which it is known to Muslims.

Unesco’s executive board chairman Michael Worbs said on Friday he would have liked more time to work out a compromise.

He told Israeli television network Channel 10: “It’s very exceptional what happened yesterday, and I’m sorry for that.”

On Tuesday, Israel’s Unesco ambassador, Carmel Shama Hacohen, accused the Palestinians of playing “games”.

“This is the wrong place to solve problems between countries or people,” he told AFP.

But Palestine’s deputy ambassador to Unesco, Mounir Anastas, welcomed the adoption of the resolution, saying he hoped it would put pressure on the Israeli authorities to “stop all their violations”, particularly the excavation of sites in and around the Old City.

See BBC News (2016).

[41] Not sure if this is the correct quote, however, George Orwell, in Politics and the English Language (1946), states:

In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them. Consider for instance some comfortable English professor defending Russian totalitarianism. He cannot say outright, ‘I believe in killing off your opponents when you can get good results by doing so’. Probably, therefore, he will say something like this:

‘While freely conceding that the Soviet regime exhibits certain features which the humanitarian may be inclined to deplore, we must, I think, agree that a certain curtailment of the right to political opposition is an unavoidable concomitant of transitional periods, and that the rigors which the Russian people have been called upon to undergo have been amply justified in the sphere of concrete achievement.’

The inflated style itself is a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details. The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as ‘keeping out of politics’. All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia. When the general atmosphere is bad, language must suffer. I should expect to find — this is a guess which I have not sufficient knowledge to verify — that the German, Russian and Italian languages have all deteriorated in the last ten or fifteen years, as a result of dictatorship. [Emphasis added.]

See Orwell (1946).

[42] Statistics Canada reported 429 hate crimes based on religion in 2014, 469 hate crimes based on religion in 2015, 460 hate crimes based on religion in 2016, 842 hate crimes based on religion in 2017, 639 hate crimes based on religion in 2018. This averages 567.8 hate crimes per annum over a five year period based on the years of 2014, 2015, 2016, 2017, and 2018. See StatsCan (2018).

[43] See Ferreras (2018), where one can see coverage of anti-Muslim and anti-Jewish hate crimes, defined as such, in about equal measure in the number of the respective raw occurrences. Although, more Muslims, by a large comparative amount, live in Canada than Jewish peoples. Thus, per capita, Jewish peoples, at a minimum, report more if not experience more. In this context, anti-Jewish means anti-Semitic, and vice versa.

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