In his final report by the out-going Special Rapporteur on the Situation of Human Rights in the Palestinian Territories, Richard Falk, the SR stresses the importance of his mandate as an independent witness to the evolving effects of the continuing occupation of Palestine. His report surveys the continuing effects of the Wall, the Israeli settlements and their fragmenting effect in occupied Palestine and the tight restrictions on supplies and movement in and out of the Gaze Strip. He vigorously condemns the deprivations and affronts imposed by ‘seam zones; checkpoints; zoning and planning restrictions; demolition of homes and forced evictions (particularly of Bedouin communities in Area C); revocation of residency rights; the designation of vast tracts of land in the West Bank as closed military zones or natural reserves; and the expropriation of land for settler agriculture or industrial zones’, all of which ‘may irreversibly disrupt the contiguity of the West Bank, undermining a just and sustainable two-State solution’.
The SR condemns also the bold illegality of unabated recent intensive construction in the occupied Palestinian territories. He points to recent encouraging signs of increased corporate scrutiny and responsibility in relation to business projects in the occupied territories, and notes the diligence of the EU and some of its member States in carefully calibrating their funding agreements to reflect HR considerations. However he then asks whether the same human rights standards are applied by countries when it comes to trade relations with the settlements (see paras 23-47).
Richard Falk recalls efforts by himself as well as his predecessor, in earlier reports, calling for a referral to the ICJ for an Advisory Opinion on the following question ‘whether elements of the [Israeli] occupation constitute forms of colonialism and apartheid’ and whether ‘the the prolonged occupation of the West Bank and East Jerusalem possess elements of ‘colonialism’, ‘apartheid’ and ‘ethnic cleansing’ inconsistent with international humanitarian law in circumstances of belligerent occupation and unlawful abridgement of the right to self-determination of the Palestinian people’. As no Opinion has been sought to date, he undertakes his own detailed analysis of the parameters of Apartheid under International Law and considers Israel’s conduct vis a vis the Palestinian population in the light of it (see paras 53-76).
The Report concludes that ‘ without prejudice to an authoritative determination of whether the breaches of the discussed peremptory norms qualify as “serious”, it is noted that the violations discussed in the context of the prolonged occupation appear deliberate, organized, institutionalized and longstanding.’ The S-R notes that acceptance of jurisdiction by the ICC to consider the case of Palestine if criminal conduct is alleged ‘would potentially bring a measure of accountability for key individuals, and address violations related to the crime of apartheid and other issues flowing from the more than 400 communications on crimes allegedly committed in Palestine, received by the Office of the Prosecutor of the International Criminal Court since 2009.’
The SR makes forceful recommendations including cessation of settlement activities and reparations for the damage they have caused. Here is a selection:
– that ‘the General Assembly request the ICJ to issue an advisory opinion on the legal status of the prolonged occupation of Palestine, as aggravated by prohibited transfers of large numbers of persons from the occupying Power and the imposition of a dual and discriminatory administrative and legal system in the West Bank, including East Jerusalem, and further assess allegations that the prolonged occupation possesses legally unacceptable characteristics of ‘colonialism’, ‘apartheid’ and ‘ethnic cleansing’.
– that ‘the Human Rights Council appoint an expert group to propose a special protocol to the Fourth Geneva Convention with the specific purpose of proposing a legal regime for any occupation that lasts for more than five years (see the Levy Report for the extra relevance of this);
– that ‘the international community comprehensively investigate the business activities of companies and financial institutions registered in their own respective countries, which profit from the settlements of Israel and other unlawful Israeli activities, and take appropriate action to end such practices and ensure appropriate reparation for affected Palestinians. Member States should consider imposing a ban on imports of settlement produce;
– that ‘the Government of Israel cease expanding and creating settlements in occupied Palestine, start dismantling existing settlements and returning its citizens to the Israeli side of the Green Line, provide appropriate reparations for the damage due to settlement and related activity since 1967, and act diligently to protect Palestinians living under Israeli occupation from settler violence.