9. It is also important to underscore what should be self-evident, namely, that Israel has State responsibility for all violations of international humanitarian law in the territories under occupation, above all, for the settlements. State responsibility cannot be evaded by delegation or failure to deal with violations of Palestinian rights in the occupied territories arising from the behaviour of municipal or private sector actors, as in connection especially with claims of unlawful settlement building and ethnic cleansing allegations in East Jerusalem.
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[6] A/HRC/4/17, summary, tenth paragraph.
[7] See Rome Statute of the International Criminal Court, article 7, para. 2 (h).
A/HRC/16/72
5
A/HRC/16/72
6
II. Reviving the direct peace talks
10. At present, there has been a pause in the peace negotiations between Israel and the Palestinian Authority and feverish diplomatic efforts are being made to continue discussions between the parties. These efforts are relevant to the Rapporteur, as the generally accepted route to the fulfilment of the right of self-determination for the Palestinian people living under occupation has been to achieve an Israeli withdrawal in accordance with Security Council resolution 242 (1967) or on the basis of an agreement between the parties. Whether such negotiations can be effective and legitimate is itself a much contested question that will not be considered here, nor will the presumed outcome of establishing an independent Palestinian state in the occupied territories be assessed from the perspective as to whether the accumulation of facts on the ground has made such an outcome unattainable as a practical matter. In a recent report to the General Assembly (A/65/331), the Special Rapporteur put forth the argument that the developments in the West Bank and East Jerusalem have transformed a de jure framework of occupation into a de facto condition of annexation. The Rapporteur remains convinced that Israeli settlements, including related infrastructure roads, buffer zones and the separation wall, continue to be the single most important obstacle to resuming the peace talks, assuming that such talks can make constructive contributions to the realization of Palestinian rights, which is far from self-evident. The Palestinian Authority has repeatedly said that it would not resume negotiations without an unqualified freeze on settlement expansion, including East Jerusalem. President Mahmoud Abbas stated: “We want a complete cessation of settlement construction. We don’t want to be deceived with another moratorium or a half moratorium or a quarter moratorium. If they want us to talk to the direct talks, the settlements must stop completely”.[8] The chief Palestinian negotiator, Saeb Erekat, made the same avowal: “There are no compromises over settlement construction … The Israeli government must choose between peace and settlements, because it can’t combine the two together”.[9]
11. Further, the Rapporteur believes that there are grounds for concern with respect to maintaining the rights of the Palestinian people in relation to the inducements offered to Israel to extend the partial moratorium on settlement expansion. Since this question is one of principle, it remains relevant despite the announcement of the Government of the United States that it will no longer press the Government of Israel to freeze settlement expansion. It is important to bear in mind that the unlawfulness of the settlements has been confirmed over and over again by reference to the textual language of article 49(6), of the Fourth Geneva Convention, by decisions and resolutions of the General Assembly and the Security Council and by numerous statements on the part of respected world leaders. Therefore, providing Israel with substantive benefits for temporarily and partially halting an unlawful activity that infringes on Palestinian prospects for self-determination raises disturbing issues of principle and precedent. The former American Ambassador to Israel, Daniel Kurtzer, has referred to such an effort by the United States to renew the negotiations as designed “to reward Israel for its bad behavior” in the past and present.[10] It is also widely reported that, if Israel accepts the offer, it will never again be asked to impose a moratorium on settlement expansion in either the West Bank or East Jerusalem. What is most relevant
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[8] Khaled Abu Toameh, “Abbas: Israel seeking to ‘close door to right of return’”, The Jerusalem Post, 8 November 2011.
[9] Ibid. 10 “With settlement deal, U.S. will be rewarding Israel’s bad behavior”, Washington Post, 21 November 2010. Robert Fisk has phrased an objection in even harsher language: “The current American bribe to Israel, and the latter’s reluctance to accept it, in return for even a temporary end to the theft of somebody else’s property would be [normally] regarded as preposterous”. “An American bribe that stinks of appeasement”, The Independent, 20 November 2010.
here is the disregard of the legal rights of the Palestinians living under occupation. If a pattern of repeated violation of rights, as here, is to be treated as a new platform of legality, then a terrible precedent is being established for these parties and generally. There can be no positive significance to a negotiating process that incorporates an acceptance and legitimization of Israeli settlements and their infrastructure of roads, which constitute a fundamentally unlawful dimension of the prolonged Israeli occupation of the West Bank and East Jerusalem. In this respect, only a permanent commitment to freeze settlement growth would signal the minimal good faith required to support the belief that peace talks are a viable path at this stage to reach the essential goals of Palestinian self-determination and a sustainable peace with security for both peoples.
12. On the matter of Palestinian self-determination, the most basic right whose exercise is precluded by the continuation of the occupation, Palestinian Authority has stated that if the talks fail it will establish a Palestinian state on its own even in the face of the occupation. President Abbas expressed this view as follows: “If we fail in [the negotiations], we want to go to the United Nations Security Council to ask the world to recognize the Palestinian state”.[11] This is consistent with the frequently discussed plans for Palestinian statehood articulated by the Palestinian Authority Prime Minister, Salam Fayyad. Mr. Fayyad has announced plans for constructing in the West Bank the institutional components of Palestinian statehood, and his efforts have been viewed as credible and impressive in many independent quarters.[12] In Mr. Fayyad’s recent words, “I firmly believe [Palestinian statehood] can happen. We need to build up a sense of inevitability about this. I think it will happen next year”.[13] A report issued by the World Bank in October 2010 also encouraged these expectations, suggesting that if the Palestinian Authority maintains “its performance in institution-building and delivery of public services …, it is well-positioned for the establishment of a Palestinian state at any point in the near future”.[14] Nevertheless, it needs to be understood that such a Palestinian state could be viewed as falling far short of realizing the minimum content of an acceptable enactment of self-determination, lacking in resolution of outstanding core issues such as refugees, Jerusalem, borders, water and settlements. In a notable recent development, with many legal and political implications, Brazil and Argentina formally recognized Palestine as a state within its 1967 borders, which in effect, seems to be the territorial vision of Palestinian self-determination contained in Security Council resolution 242 (1967) (subject to minor border adjustments, but not sufficient to allow annexation of the settlement blocs in “exchange” for largely arid land abutting Gaza, or to transfer Arab villages currently behind the green line) and encompassing the crucial non-territorial issue of refugees.
