By Nasim Ahmad, Palestinian Return Centre (PRC) Senior Researcher. The Balfour declaration was made on the twin promises to; on the one hand, establish a Jewish national home in Palestine and, on the other, an assurance that nothing shall be done which may prejudice the civil and religious rights of the existing non Jewish communities in Palestine.
CONTENTS
INTRODUCTION
1. BIRTH OF HUMAN RIGHTS
1.1 Applicability of International Humanitarian Law
2. HUMAN RIGHTS ABUSE IN PALESTINE: The Incontrovertible Facts
2.1 Born in Sin
2.2 From original sin to industrialized misery
2.3 Wider Human Rights Abuses
3. THE RIGHT of RETURN
3.1 Human Right and Protection of Refugees
4. CONCLUSIONS
INTRODUCTION
The Balfour declaration was made on the twin promises to; on the one hand, establish a Jewish national home in Palestine and, on the other, an assurance that nothing shall be done which may prejudice the civil and religious rights of the existing non Jewish communities in Palestine. Setting aside the pure colonial and disingenuous tone to this declaration, it set in motion events that would clearly bring about the very thing which Balfour himself feared; prejudicing the rights of the indigenous population of Palestine.
Maybe it was naivety, maybe it was tactical Balfour failed to recognize the mutually exclusive aspirations that he held. In going against the political, historical and demographic contours of the region and impose a state defined by its ethnic identity, while at the same time promising to ensure that a secular democratic state is not compromised, is the product of a conflicted mind. History no doubt has judged such hopes as irreconcilable goals. It is the goal of this paper to explore the extent to which the human rights of the Palestinians have been compromised in pursuing Israeli aspirations for Palestine. It will also explore reasons why a people, the Palestinians, continue to have their human rights violated.
This paper is a modest contribution in marking International Human Rights Day, which the United Nations' (UN) annually observes every year on the 10th of December in commemorating the anniversary of the Universal Declaration of Human Rights (UDHR).
Regarding this annual campaign, launched in 1948, the UN Secretary General said, “the campaign seeks to remind all that in a world still reeling from the horrors of the Second World War; the declaration was the first global statement of what we now take for granted - the inherent dignity and equality of all human beings. The UDHR was the first international recognition that all human beings have fundamental rights and freedoms and it continues to be a living and relevant document today. It represents the normative basis for the international human rights regime which includes various UN charters on human rights and countless other treaties between states.
In terms of human rights, this year has been like no other. Human rights activism has never been more topical or more vital. And through the transforming power of social media, ordinary people have become human rights activists around the world.
The civilian uprising in the Middle East, over the past year, is a vivid reminder of the huge importance in reminding and more importantly promoting the values and principals enshrined in the UNHR. Millions of people had decided to claim their right. They took to the streets and demanded change. Their voices unfettered, they starting using the internet and instant messaging to inform, inspire and mobilize supporters in seeking their right.
Buoyed by the spirit of their brethren, in standing up for injustice and human rights, thousands of Palestinians also took to the streets, in Palestine and around the region. The intimate relationship between the Palestinian struggle and all the other demonstrations was clearly visible as protesters in Tunisia, Egypt and Libya raised Palestinian flags, in solidarity and in recognition that their struggle for human rights cannot be separated from the much longer struggle for human rights by the Palestinians.
While millions across the Middle East are trying to adjust and renegotiate the relationship between the state and its subject, Palestinians have been struggling to do the same for decades. At the core of human rights is a recognition that the state exists to uphold basic human rights of the people it rules. However, for Palestinians, they have been subjected to every form of repression and abuse by the only state actor that controls their life. It is the total absence of human rights, Israeli repression and occupation, which fuelled both intifada and other uprisings over the decades.
The paper will keep to the following arrangement. After a brief introduction to the birth of human rights and the human rights regime, there will follow a discussion on the additional applicability of international humanitarian law in Palestine. It will then present facts, historical analysis and ongoing research, describing Seven decades of human rights abuse against the Palestinians. A central argument, supported by the presented facts, is that continued human rights violations against the Palestinians are built into the logic of Zionism; one could not succeed without the other. The concluding section will attempt to explore reasons for the human rights breeches and highlight the shameful failure to bridge the gap between reality and aspiration.
1. BIRTH OF HUMAN RIGHTS
While it cannot be denied that every political arrangement has some notion of human rights, the Universal Declaration of Human Rights (UDHR) was the first document to formalize internationally agreed standards of human rights.
In 1948, in the aftermath of the Second World War, the newly formed United Nations adopted the Universal Declaration of Human Rights (UDHR). In response to the atrocities committed before and during the War, the international community sought to define the rights and freedoms necessary to secure the dignity and worth of each individual.
The trauma and violence of World War II inspired the Allied Nations to establish a peace-keeping organization for the prevention of the recurrence of such horrors. On June 12, 1941, a preliminary move toward the establishment of the United Nations occurred with the signing of the Inter-Allied Declaration. Signed in London, the Inter-Allied Declaration pledged that the Allied powers would "work together, with other free peoples, both in war and in peace".
The first step toward building an international system of human rights protection was taken on December 10, 1948 in Paris when the UN General Assembly adopted the Universal Declaration of Human Rights.
This declaration is the international pronouncement of the inalienable and inviolable rights of all members of the human family. The Declaration was proclaimed in a resolution of the General Assembly on 10 December 1948 as the "common standard of achievement for all peoples and all nations" in respect for human rights. It lists numerous rights - civil, political, economic, social and cultural - to which people everywhere are entitled.
The Declaration contains, in addition to its preamble, thirty articles that outline people’s universal rights. Some of the rights championed by the Declaration are:
• Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion…Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
• No one shall be subjected to arbitrary arrest, detention or exile.
• All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
• Everyone has the right to freedom of movement and residence within the borders of each state.
• Everyone has the right to leave any country, including his own, and to return to his country.
• Everyone has the right to seek and to enjoy in other countries asylum from persecution.
• Freedom of thought, conscience and religion
• Everyone has the right to a nationality.
• No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
• Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
• Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
In addition to the International Bill of Rights, the International Human Rights main treaty sources include the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966), as well as the Convent on Genocide (1948), Racial Discrimination (1965), Discrimination Against Women (1979), Torture (1984) and Rights of the Child(1989). There are other main regional instruments that include the European Convention for the protection of Human Rights and Fundamental Freedoms (1950), the American Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights (1969), and the African Charter on Human and People’s Rights (1981).
The legal status of these instruments varies: they include declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct; covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them.
There are nine core international human rights treaties. Each of these treaties has established a committee of experts to monitor implementation of the treaty provisions by its States parties. Some of the treaties are supplemented by optional protocols dealing with specific concerns.
Each of these rights treaties has a monitoring body, composed of independent experts who examine the reports that signatory nations submit under the treaty. These committees are also in charge of issuing "concluding observations/comments", where they summarize their concerns about certain states and also give recommendations for the future.
Most if not all relate to Palestinians in one form or another, in particular International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child
In addition to the International Bill of Rights and the core human rights treaties, there are many other universal instruments relating to human rights. The legal status of these instruments varies: declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct; covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them.
The universal acclimation of this document guaranteed, in theory at least, a set of normative values and principles that all must uphold. It was the first document of its kind in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948, as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected.
Originally, the UDHR brought together 58 distinct geographic, cultural and political backgrounds in the formation of one universal document. Although the UDHR is not legally binding it has created international human rights standards that are codified in various international treaties that are binding.
Unlike local and national political units, the absence of law has been the rule in international politics. The only way to introduce structured regulation despite, the general anarchy is through an agreed framework. Such frameworks only exist when states, in order to avoid the costs of uncoordinated national action, are able to agree on norms or procedures to regulate their interactions. The post Second World War global system was crying out for a global system that fettered institutionalized crimes against humanity. If ever there was a stark reminder of Reinhold Neiburs assessment, the human propensity for goodness makes democracy possible and human propensity for evil makes democracy necessary, than that was it.
1.1 Applicability of International Humanitarian Law
In addition to human rights law, which is universally guaranteed, there are other provisions that also come into effect in situations of conflict, which are also designed to protect the human rights of civilians and non combatants. The question of which international law framework is applicable to Palestine is continually challenged by Israel, even though there is global consensus on the de jure applicability of a range of provisions designed to protect the human rights of civilians. The U.N. Security Council has confirmed the applicability of the 4th Geneva Convention to the Occupied Palestinian Territory, including Jerusalem, in 25 resolutions. Many of those resolutions call upon Israel, the occupying Power, to comply with the provisions of the Convention and to accept its de jure applicability. The General Assembly, along with other bodies of the U.N., has adopted scores of resolutions affirming the same position, as well as calling for an end to the occupation and repeatedly affirming the inalienable rights of the Palestinian people and the need for the realization of those rights.
Israel, however, refuses to accept the de jure applicability of the 4th Geneva Convention to the Occupied Palestinian Territory, including Jerusalem and has committed serious violations of every relative provision of the Convention. At the start of the occupation, Israel, the occupying Power, immediately began imposing countless repressive measures, such as administrative detention, deportation, home demolitions and other forms of collective punishment, against the Palestinian civilian population in the Occupied Palestinian Territory, inflicting enormous suffering and harm on them.
The most authoritative position on this was stated by the International Court of Justice (ICJ) July 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The ICJ rejected Israel’s reading of Common Article 2, where it rejected the applicability of International Humanitarian law. The ICJ was consistent with other Security Council resolutions which held that, the proper reading of the law is that any occupation arising from an armed conflict activates provisions under humanitarian law.
Numerous Security Council and other U.N. resolutions have dealt with specific serious Israeli violations of the 4th Geneva Convention and other acts contrary to its provisions, such as settlements; measures related to Jerusalem; deportations, indiscriminate shooting of civilians and collective punishment. The resolutions all condemn such illegal Israeli actions and call for their cessation and for full Israeli compliance with the provisions of the Convention and the terms of those resolutions. In several of these resolutions, the Security Council has called for measures to provide for the safety and protection of the Palestinian civilian population and requested the U.N. Secretary-General to fulfill certain tasks in this regard.
The international community, through U.N. resolutions, has consistently and repeatedly rejected Israel's claims, its policies and practices in the occupied territory. In 1968, the General Assembly established the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and other Arabs of the Occupied Territories, which, in spite of Israel's refusal to cooperate, has submitted periodic reports to the General Assembly throughout each session. Further, in 1993, the Commission on Human Rights appointed a Special Rapporteur for the Occupied Territories and again Israel refused to cooperate.
2. HUMAN RIGHTS ABUSE IN PALESTINE: The Incontrovertible Facts
The political aspirations of Zionism guaranteed human rights abuse of the Palestinians. For six decades Israel has succeeded in placing itself above the international human rights regime, legitimizing its expansionist policies, and exempting its crimes from the world’s moral and legal sanctions. Israel has claimed the right to mangle millions of lives, to persist in violence, start new wars, and, more recently, to threaten its neighbors with nuclear holocaust. The ever-expanding circles of conflict and instability was contained in the Zionist idea itself. Instability and violence are integral to Zionism: they have flowed from its inner logic. They are not incidental to it. Given the ideological force behind the project, its immense scale and its dogged determination, no moral and legal concern could stand in its way.
Such claims though rejected due to their political inconvenience are incontrovertible facts attested to by every authoritative body. However, one should recognize, before providing the factual records that every policy of aggression by Israel amounts to hundreds of thousands of human rights violations. So for example when Israel imposed a siege on Gaza, this single criminal policy, was not only a violation of international law as it amounted to collective punishment of the people of Gaza but it was also a violation of thousands of different human rights.
In what follows, I will present the rich literature that confirms the unassailable facts concerning Israel’s violation of Palestinian human rights right from its very birth to its current ongoing infraction.
2.1 Born in Sin
The political aspirations of Zionism guaranteed violation of Palestinian human rights. Ongoing circles of conflict, repression, dispossession, forced exile and regional instability, was contained in the Zionist idea itself. Instability and violence are integral to Zionism: they have flowed from its inner logic. They are not incidental to it. The use of violence against the Palestinians was not the Zionist’s fallback plan. Privately, they knew that this was the only option that had a chance of succeeding.
The creation of Israel was only possible through a program of population transfer. Existing scholarship provides a detailed chronological historical analysis of the Nakba (The forced exile of Palestinians in 1948). Most notably, Illan Pappe’s book, The Ethnic Cleansing of Palestine, provides a chronology of days before and after the creation of Israel in May 1948. In it, he describes Plan Dalet, the master plan to rid Palestine of its indigenous population.
The 1948 war provided Israel with its first major opportunity to expel as many Palestinians as possible. Altogether 531 localities were depopulated and 85 per cent of Palestine was occupied by Israel . According to Benny Morris, in his authoritative work 1948, the sequence of depopulation took place over four waves of violence from December 1947 to November 1948. In the first wave, 213 localities – 43 per cent of localities and 54 per cent of refugees were overrun by the Zionist militia gangs, while Palestine was under the protection of British Mandate. The expulsion was largely due to Plan Dalet, ‘The Master Plan for the Conquest of Palestine’. As Ilan Pappe and others have shown, Plan Dalet was intended not only to grab the land and expel as many Palestinians as possible, but also to seize government institutions and public services. It was ‘total war’ waged against the Palestinians.
Practically the whole exodus was related to military assaults, with each phase being opened by a massacre. Through operation Dalet, and while Palestine was under British Protection, the Deir Yassin massacre of April 9, 1948 was carried out. This was followed by dozens of other massacres.
According to Israeli military historian Arieh Yitzhaki (he is also a lecturer at Bar Ilan University), about ten major massacres were committed by Jewish forces in 1948-49, with more than 50 victims in each massacre and about one hundred smaller massacres of individuals or small groups. According to Yitzhaki, these massacres (large and small) had a devastating impact on the Palestinian population by inducting and precipitating the Arab exodus. Yitzhaki went further to suggest that almost in every village there were murders. Israeli historian Uri Milstein goes even further to suggest that each battle in 1948 ended with a massacre.
These facts are not hidden from public view, if one simply peered over the propaganda. Even the former Prime Ministers Ariel Sharon said, while addressing a meeting from the extreme right-wing Tsomet Party:
“It is the duty of Israeli leaders to explain to public opinion, clearly and courageously, a certain number of facts that are forgotten with time. The first of these is that there is no Zionism, colonisation, or Jewish State without the eviction of the Arabs and the expropriation of their lands" . In the same meeting he went on to say, "Everybody has to move, run and grab as many (Palestinian) hilltops as they can to enlarge the (Jewish) settlements because everything we take now will stay ours...Everything we don't grab will go to them."
One only needs to take a cursory look at the public statements and actions of Zionist leaders to see that, in its very design, Zionism assailed against a core universal principal prohibiting ethnic cleansing and forceful expulsion of people from their home. The cover of war, countless ‘security measures’, military pretexts for occupation and legal justifications, an euphemism for creeping colonisation, are all part of the same overall strategy to expel as many Palestinians as possible from their land.
The idea of population transfer, a euphemism denoting the organized removal of the Palestinians to neighboring or distant countries, was deeply rooted and still remains a constant feature of Israeli policy. According to Professor Nur Masalha, this concept has sometimes been delicately described as population exchange, sometimes as Arab return to Arabia resettlement and rehabilitation of the Palestinians in Arab countries. The envisaged modalities changed over the years according to the circumstances. The idea of transfer took centre stage before and after 1948. Ben Gurion went as far as to write: “we must prepare ourselves to carry out the transfer”. In a letter to his son Ben Gurion also said “we must expel the Arabs, and take their places..and, if we have to use force...to guarantee our own right to settle in those places, then we have force at our disposal”. The Zionist ideology paved the way for and enforced the mechanism of population transfer that would be implemented over six decades.
As the journalist, Jonathan Cook argues in his book, Disappearing Palestine, Israel, over the decades, has developed and refined policies to disperse, imprison, and impoverish the Palestinian people in a relentless effort to destroy them as a nation. It has industrialized Palestinian despair through ever more sophisticated systems of curfews, checkpoints, walls, permits and land grabs. It has transformed the West Bank and Gaza into laboratories for testing the infrastructure of confinement and created a lucrative "defence" industry by pioneering the technologies needed for urban warfare, crowd control, and collective punishment.
2.2 From original sin to industrialized misery
Not only was Israel born through unspeakable human rights violations against the Palestinians it has continued its policy of aggression and colonization of Palestine, reaping even more misery and despair. The factual details of the matrix of misery erected over the Palestinians are documented by various human rights treaty bodies, intergovernmental organizations, non-governmental organizations and individuals. The UN body, The Office of the High Commissioner for Human Rights (OHCHR), is the most high profile body. OHCHR supports the work of rapporteurs, representatives and working groups.
In his most recent report, given in October 2011, Richard Falk, the current special rapporteur, lists the range of human rights violations taking place. Although not exhaustive by any account, he provides a scathing account of the brutal reality of occupation.
After notifying of his ongoing failure to obtain cooperation from Israel in the discharge of his obligations under the mandate emphasizes the fact that “As usual, there are many more serious human rights concerns associated with the occupation by Israel than can be addressed in this report, which is subject to United Nations guidelines as to a maximum number of words. In order to avoid the impression that earlier concerns no longer persist, the Special Rapporteur stresses that there are continuing violations of international humanitarian law and human rights law arising, inter alia, from the issues discussed below”.
He then reconfirmed that all the human rights at stake are due to the prolonged occupation by Israel of Palestinian territory, the most fundamental of which, he believes, is the right of self-determination. He raised concerns about the human rights violations caused by the illegal wall stressing Israel’s hard and fast approach to its own occupation policy even in contravention of international law. This authoritative judicial interpretation of the international obligations of Israel, which was endorsed by the General Assembly in its resolution ES-10/15, has been repudiated by Israel without generating any result-oriented international reaction.
One of the many interesting and searching question he raises is the censurable selectiveness of the international community in applying human rights. He says“ there are two conjoined issues present: the refusal of Israel to adhere to its obligations under international law in administering the occupied Palestinian territories, and the failure of the United Nations to take effective steps in response to such persistent, flagrant and systematic violations of the basic human rights of the Palestinians living under occupation. Yet such steps would seem to be given increased prominence in the light of the adoption of the responsibility to protect doctrine by the Security Council (resolution 1674 (2006)), and its recent application by way of Security Council resolution 1973 (2011) mandating the protection of civilians in Libya”.
Following previous template of reports by the special repporteurs on Palestine, he restates the basic obligations of Israel under international humanitarian law as the occupying Power of the West Bank, including East Jerusalem, and the Gaza Strip. These obligations are mainly set forth in the Geneva Convention relative to the Protection of Civilian Persons in Time of War, to which Israel is party. He also lists other highly relevant international legal instruments pertaining to circumstances in the occupied Palestinian territories including the Convention on the Rights of the Child, with 197 States parties (including Israel) and the International Convention on the Suppression and Punishment of the Crime of Apartheid, with 107 States parties.
After clarification of the relevant provision and their applicability he lists numerous violation by the occupation policy of Israel. Examples include the annexation — and what even Israeli sources refer to as the “Judaization” — of East Jerusalem; the purported geographic expansion of the boundaries of the city of Jerusalem; the inability of more than 10,000 Palestinian children to be legally registered in East Jerusalem, thereby forcing Palestinian families to choose between staying together, at the risk of losing their Jerusalem residency permits, or accepting an enforced separation from their family members; the appropriation of increasingly scarce water resources from aquifers in Gaza for use in Israel and by Israeli settlers; the imposition and enforcement of a blockade on the entire population of Gaza for a period of more than four years, which dramatically curtails basic rights to education, housing and health; the maintenance of a dual system of law and administration in the West Bank, which privileges Israeli settlers and openly discriminates against Palestinians; and the systematic abuse of Palestinians arrested and detained by Israeli security forces, including children of a young age.
