4. Closely related to issues associated with non-cooperation are several outstanding matters bearing on non-implementation. The report of the International Fact-Finding Mission on the Gaza Conflict on the basis of its findings of severe and systematic violations of international humanitarian law recommended that several steps be taken to assess the accountability of the perpetrators of criminal acts committed during the Gaza conflict (2008/09). There is currently no sign of any attempt to mobilize effective support for the implementation of these recommendations. Moreover, evidence of an Israeli willingness to impose credible levels of accountability for criminal acts of its soldiers and leaders in accordance with international standards remains absent. These conclusions were reaffirmed by the report of the Committee of independent experts that assessed investigations by Israel and the Palestinian sides into the Gaza conflict (A/HRC/15/50). In addition, the same

A/HRC/16/72

3

A/HRC/16/72

4

conclusions seem to pertain to the report of the independent international fact-finding mission on the incident of the humanitarian flotilla of 31 May 2010.[1] Thus, a strong impression is being formed within the international community that a lack of political will exists with which to implement recommendations based on authoritative findings that Israel has been guilty of flagrant violations of international humanitarian law and international criminal law. This impression of unwillingness to push forward with implementation fosters widespread perceptions of impunity with respect to the conduct of Israel, and in the case of flotilla incident limits and delays the opportunity of flotilla passengers to pursue remedies for harms unlawfully inflicted. This dynamic of evasion and delay weakens overall respect for international law, as well as the credibility of the Human Rights Council in relation to its own initiatives. More substantively, it deprives the Palestinian people living under occupation of their rights to receive the benefits of protection conferred in circumstances of occupation by international law and, specifically, the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) and the First Additional Protocol to the Geneva Conventions of 1949.

5. Given the long duration, the severity and continuing nature of the violations of many fundamental legal obligations of Israel as the occupying Power, these failures of implementation of international humanitarian law are experienced on the ground through various acute forms of abuse and suffering endured on a frequent, often on a daily, basis by the civilian population of the occupied Palestinian territories. Many political leaders have confirmed this assessment in recent months, and yet the organized international community remains silent. For instance, the Foreign Minister of Germany, Guido Westerville, after a recent visit to Gaza declared that the persistence of the blockade was “not acceptable”.[2]

6. Furthermore, the report of the Independent International Fact-Finding Mission on the incident of the humanitarian flotilla found that the violence used by the Israel Defence Forces when the flotilla was attacked was “not only disproportionate but demonstrated levels of totally unnecessary and incredible violence” as well involving “an unacceptable level of brutality”.[3] The report concludes that the Israeli attack resulted in “grave violations” of international human right and humanitarian law, as specified in article 147 of the Fourth Geneva Convention.[4] It also solicits cooperation from the Government of Israel to identify the perpetrators of this violence, whose identity was hidden by masks worn during the attack on the flotilla. Such information was being sought “with a view to prosecuting the culpable”.[5] As a result of these findings, the Government of Israel is obliged to end the blockade in all its aspects with a sense of urgency, to cooperate in the identification of perpetrators of the violence and of the leaders responsible for the underlying policies so that effective procedures of accountability can be employed and finally to compensate individuals and surviving family members in appropriate amounts for the unlawful harm suffered. Moreover, civil society actors that engage in such missions for genuine humanitarian purposes should be allowed to carry out their work without interference.

7. The Rapporteur believes that there are important issues of language that arise from the cumulative effects of Israeli violations of international humanitarian law, human rights law and criminal law. It becomes misleading to treat these violations as distinct behavioural

_____

[1] At the time of the submission of this report, there is still outstanding the report and recommendations of the Panel of Inquiry into the flotilla incident established by the Secretary-General and the Turkel Commission formed by the Government of Israel.

[2] Ma’an News Agency, German minister calls on Israel to lift Gaza blockade,” 8 November 2010. 3 A/HRC/15/21, para. 264. 4 Ibid., para. 265. 5 Ibid., para. 267.

instances disconnected from broader consequences that are either designed by intention or the natural outcome of accumulating circumstances (so-called “facts on the ground”). These concerns about language are accentuated because Israel is the stronger party in diplomatic settings and generally enjoys the unconditional support of the United States of America. Indeed, unlawful Israeli behaviour that starts out as “facts” have over time been transformed into “conditions”, or in the words of the American Secretary of State, Hilary Clinton, “subsequent developments” that are treated as essentially irreversible. Such transformation is true of several aspects of the occupation, including at a minimum the settlement blocs and accompanying infrastructure of roads and security zones, as well as the separation wall. To call appropriate attention to the effects and implications of these unambiguously unlawful patterns, and their somewhat perverse ex post facto attempted “legalization” and “normalization” requires stronger expository language to better understand the unbridled assault upon Palestinian rights and prospects for meaningful self- determination. It is against this background that this report has decided to employ such terms as “annexation”, “ethnic cleansing”, “apartheid”, “colonialist” and “criminality” as more adequately expressing the actual nature of the situation in the occupied Palestinian territories. Such labels can be perceived as emotive, and admittedly require a finding by a court of law to be legally conclusive. However, such language, in the Special Rapporteur’s view, more accurately describes the realities of the occupation as of the end of 2010 than the more neutral-seeming description of factual developments that disguises the structures of this occupation which has undermined the rights under international law of the Palestinian people for 43 years.

8. Against this background, the Rapporteur deems it appropriate at this time to renew the call of the former Special Rapporteur on the occupied Palestinian territories, John Dugard, for a referral of the situation to the International Court of Justice for an authoritative decision as to whether, “elements of the [Israeli] occupation constitute forms of colonialism and of apartheid”.[6] It should be emphasized that the crime of apartheid is no longer attached to the racist policies of the South African regime that generated the International Convention on the Suppression and Punishment of the Crime of Apartheid. It is now a crime associated with an “institutionalized regime of systematic oppression … by one racial group over any other racial group … committed with the intention of maintaining that regime”.[7] The crime of apartheid is also treated as “a grave breach” of article 85, paragraph 4 (c), of the First Geneva Protocol, an international treaty with 169 parties, and widely regarded as universally binding because it is declaratory of customary international law. As will be illustrated in the present report, the dual discriminatory structure of settler administration, security, mobility, and law as compared to the Palestinian subjugation seems to qualify the long Israeli occupation of the West Bank as an instance of apartheid. The referral to the International Court of Justice should also seek clarification as to whether the pattern of continuing unlawful settlement, manipulation of residence credentials, expulsions in East Jerusalem qualify as “ethnic cleansing” and, if so, how this behaviour should be viewed from the perspective of the international law of belligerent occupation.