Rule of Law in Palestine


Professor Cees Flinterman

An Interview with Cees Flinterman


Western governments and the mainstream media refer to Israel as a beacon of freedom and democracy in a uniformly undemocratic, strife-torn region — a true “liberal democracy” along the lines of Canada, the US, and the European states.

A starkly different perspective is showcased in a recent report of a United Nations committee tasked with reviewing the status of a central human rights instrument — the International Covenant on Civil and Political Rights (ICCPR).

The ICCPR — adopted by the UN General Assembly on December 16, 1966; in legal force since March 23 1976 — guarantees right to life, freedoms of religion, speech, and assembly, the right to vote, and to due process and a fair trial. Seventy-four nations have signed the Covenant and 168 are party to it. Responsibility for monitoring compliance with the Covenant falls to the United Nations Human Rights Committee — a body of the UN’s Human Rights Council — which reviews periodic State reports on the Covenant’s implementation. States typically report once every four years.

Israel — one of the first state parties to the ICCPR — submitted its 4th Periodic Report in the fall of 2013. The Committee issued “concluding observations” on Israel’s report on October 28, 2014, along with a host of questions Israel was asked to respond to. Under Committee rules, Israel was asked to respond within one year of the Committee’s concluding observations — by November 1, 2015. A response is not mandatory.

Key among the committee’s concerns — expanded upon in the above audio interview by the committee’s chairperson, Dutch jurist Cees Flinterman — is Israel’s position that the Covenant does not apply to the Occupied Palestinian Territories. Listen to the above audio interview with Professor Flinterman (apologies for the bad Skype audio).

Israel’s position on the Covenant’s applicability in the occupied West Bank is a study in paradox and contradiction. Israel claims that “Judea” and “Samaria” are actually “disputed,” rather than occupied lands. At the same time, Israel exercises de facto sovereignty over Oslo Areas A, B and C — the entire West Bank — granting the estimated half million Jewish-Israeli citizens living in Area C with full protection under the Covenant. In contrast, insofar as the 2.5 million Palestinians surrounding Jewish settlements are concerned — in all three Oslo Areas — Israel deems the land “extraterritorial,” thus non-applicable under the Covenant.

Israel’s position is backed by the US, in apparent defense of its own situation at Guantanamo, where Washington’s prisoners are denied ICCPR protections.

The committee voices concern over Israel’s position on Covenant applicability:

Item 5 (a): “The State party should … Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context … and review its legal position so as to acknowledge the extraterritorial application of the Covenant … In this respect, the Committee reiterates and underscores that the Covenant applies with regard to all conduct by the State Party’s authorities or agents adversely affecting the enjoyment of rights enshrined in the Covenant by persons under its jurisdiction regardless of the location.”

Other key compliance issues the committee has asked Israel to respond to:

Item 7: “The Committee … is also concerned that the Jewish and non-Jewish population are treated differently in several regards and that the State party’s domestic legal framework maintains a three-tiered system of laws affording different civil status, rights and legal protection for Jewish Israeli citizens, Palestinian citizens of Israel and Palestinian residents of East Jerusalem.”

Item 9: “The Committee is concerned at the resumption of the policy of punitive demolitions in the West Bank since July 2014. It is also concerned about the discriminatory zoning and planning regime regulating the construction of housing and structures by Palestinians in Area C of the West Bank and by Palestinian Bedouins in the central West Bank … that makes it almost impossible for them to obtain building permits, while facilitating the State party’s settlements in the Occupied Palestinian Territory … The Committee is further concerned at the demolition and forcible transfer of Bedouins residing in Area C …”

Item 9 (a), (b) and (c): “The State party should … Immediately put an end to conducting punitive demolitions … Refrain from implementing evictions and demolition orders based on discriminatory planning policies … [and] Desist from any actions that may facilitate or result in forcible transfer and forced evictions.”

Item 12: “The State party should … Lift its blockade of the Gaza Strip, insofar as it adversely affects the civilian population and provide unrestricted access for the provision of urgent humanitarian assistance and construction materials needed for civilian reconstruction efforts.”

Item 14: “The State party should explicitly prohibit torture, including psychological torture, and cruel, inhuman or degrading treatment … [and] … remove the notion of “necessity” as a possible justification for the crime of torture.”

Item 15: “The Committee is concerned at reports of use of torture and other ill-treatment in the State’s detention facilities, including widespread, systematic and institutionalized ill-treatment of Palestinian children.”

Item 16: “The Committee is concerned at acts of violence perpetrated by the State party’s settlers against Palestinians and their property in the West Bank, including East Jerusalem …”

Listen to Professor Cees Flinterman reviewing these points. Click on the audio link above.