Mainstreaming IHL and IHRL in the ENP Progress Report on Israel

EMHRN, APRODEV, CIDSE joint submission for the ENP Progress Report on Israel

Mainstreaming IHL and IHRL in the ENP Progress Report on Israel

 

Context

In the summer of 2010, the European Union (EU) initiated a review of the European Neighbourhood Policy (ENP) among others to respond to the new opportunities opened by the Lisbon Treaty. The “Arab Spring” has made this review even more compelling and in May 2011, the European External Action Service (EEAS) and the European Commission adopted a joint Communication entitled “A new response to a changing Neighbourhood”[1]. This joint communication was welcomed by the Council of Foreign affairs on 20 June 2011[2]. In its conclusions the Council states that “the new approach of the EU will be based on mutual accountability and shared commitment to universal values of liberty, democracy, respect for human rights, fundamental freedoms and the rule of law”.

 

What we advocate

In the context of this “renewed” ENP policy, the EEAS is revising the structures of the different ENP instruments, including the ENP Progress Reports. Aprodev, CIDSE and the EMHRN call on the EU to seize the opportunity of this review to include in the next ENP Progress Report on Israel a formal section on Israel’s conduct under international humanitarian law (IHL) and international human rights law (IHRL) in the occupied Palestinian territory (OPT), i.e. the Gaza Strip and West Bank including East Jerusalem[3]. The organizations also welcome the willingness of the EU to adopt action-oriented Progress Reports by identifying in the next Progress Reports priorities on which dialogue and reform efforts should focus.

 

The ENP Progress Report is an important opportunity for EU to mainstream IHL and IHRL in a context where this is most needed, and to create greater coherence in its external policy by reflecting its own position about Israel’s obligations under IHL and IHRL in the framework of the EU-Israel relationship.

 

The current state of play

At present, the EU’s reporting on Israeli conduct in OPT, mainly through the ENP Progress Reports for Israel and the Palestinian Authority (PA), contains several shortcomings. While the main Israeli human rights violations committed in Israel are included under the chapter on “Democracy, human rights and fundamental freedoms” in the Progress Report, violations committed by Israel against Palestinians from the OPT are only very partially included under this chapter – specifically only torture and the cruel, inhuman and degrading treatment of Palestinian detainees and prisoners incarcerated in Israel, the detention of Palestinian children and administrative detention are documented.  

 

When addressed at all, some other violations committed by Israel in the OPT are examined under issues related to the Middle East Peace Process, where the standards of scrutiny are only partly guided by human rights principles or by IHL and are strongly affected by other political considerations. In addition, some of the Israeli violations in the OPT are also (and sometimes exclusively) reported under the section on Human Rights and Fundamental Freedoms of the Progress Report for the OPT, which covers the implementation by the PA of its Action Plan with the EU.

The importance of mainstreaming IHL and IHRL in the ENP Report on Israel

An IHL and IHRL assessment is crucial because these legal frameworks define the rights of protected civilians under occupation and the responsibilities of an occupying power under international law.  A systematic and legally-based examination of Israel’s actions in the OPT would ensure that Israel’s duties towards the inhabitants of the occupied territories under its control are taken into account[4] and that it accurately reflects the EU’s own positions on certain Israeli practices which violate international law.[5]

Furthermore, when it comes to the Israeli-Palestinian context, IHL violations in the OPT have proved to be key threats to development in the OPT and to the fulfilment of EU’s aid objectives. Israeli actions which violate international law, particularly the closure of Gaza, severe movement restrictions in the West Bank, settlements, forced displacement and demolitions, to name a few, seriously limit the effectiveness of donor aid and the possibility of Palestinian state-building supported by the EU.[6] It is therefore not only the EU’s obligation but also in the EU’s interest to address such violations. 

 

Including actions in the OPT in the Progress Report on Israel does not constitute recognition of any sovereignty Israel might claim over the occupied areas in question. Rather it is an acknowledgment of Israel’s responsibilities under international law towards protected persons under its effective control. Notably, the application of IHL does not exclude the concomitant applicability of the occupying power’s obligations under IHRL in all areas under its effective control, as illustrated in the International Court of Justice’s Wall Opinion[7] and the UN Human Rights Committee's Concluding Observations on Israel in 2010. [8]  

The bases for including a section in the Progress Report on Israel’s violations in the OPT under IHL and IHRL

EU-Israel Action Plan

According to the jointly agreed EU-Israel Action Plan of 2004, Israel and the EU agreed “to work together to promote the shared values of democracy, rule of law and respect for human rights and international humanitarian law”. [9] 

EU commitments to promote international law and peace

The EU has defined the promotion of human rights and international law as one of the objectives of its external policy (article 21.1 of the Treaty of the EU). Moreover, promotion of peace and strengthening of international security are two additional objectives of the EU external action (art. 3.1 and 21.2(c) of the Treaty of the EU). As stated in the EU Guidelines on Promoting Compliance with International Humanitarian Law,[10] IHL is intended to alleviate the effects of armed conflict on civilians in order to avoid unnecessary suffering and destruction. In this sense, its implementation may also ease the prospects and implementation of post-conflict settlement.

EU Guidelines on Promoting Compliance with IHL

Through the adoption of specific Guidelines, the EU committed to promote compliance with IHL by third states. According to these Guidelines,[11] “whenever relevant, EU Heads of Mission, and other appropriate EU representatives (…) should include an assessment of the IHL situation in their reports on a given country or conflict.” [12] 

Geneva Conventions

By including an IHL assessment in the ENP Progress Report, the EU would act in conformity with its member States’ own obligation to ensure respect for the Geneva Conventions in terms of Common Article 1.[13]

 

Which IHL and IHRL issues in the OPT should be included in the ENP Report?

The following issues should be addressed in the ENP Progress Report on Israel, [14] in terms of Israel’s responsibilities under IHL and IHRL in the OPT[15]:  

-          Consistent with the Council Conclusions of 2009, the EU should examine settlement construction, demolitions and evictions and the Wall/Barrier built on occupied land[16]

-          The Gaza closure, to which the EU has routinely called for an end, and which is considered collective punishment by the International Committee of the Red Cross[17]

-          Protection of civilians under IHL (i.e. civilians killed and injured by Israeli forces in the OPT), including in the Gaza Access Restricted Areas (ARA).[18]

-          The restriction of movement within the OPT– including the Gaza ARA and the limitation of movement between Gaza, the West Bank, and East Jerusalem.

-          Israel’s illegal annexation of East Jerusalem, including the unlawful Israeli policies and measures aiming at expelling Palestinians from East Jerusalem, [19] as outlined in the 2010 EU Heads of Mission report on East Jerusalem. [20]

-          Protection of Palestinians and their property from settler violence

-          The lack of investigation and domestic legal remedies in accordance with international law for Israeli violations, among others into cases of killings and injuries of Palestinians, armed attacks on protected persons and objects, settler violence and torture and other forms of cruel, inhuman, and degrading treatment against Palestinians (culture of impunity)[21] 

-          Respect for freedom of assembly[22] and religion by Israel in the OPT

-          The use of torture and other forms of cruel, inhuman, and degrading treatment against Palestinians living in the OPT, including detention conditions of Palestinians in Israeli prisons[23], the access of patients to healthcare outside Gaza, the ill-treatment of Gaza fishermen and home demolitions in the ARA[24]

-          Arrest and detention of Palestinian children[25]

-          The use of administrative detention

Based on the above assessment of the Israeli IHL and IHRL violations committed in the OPT, the EU should include Israel’s violations in the OPT as a priority topic of its dialogue with Israel and identify specific actions to promote Israel’s respect of its obligations as Occupying Power.

For further information about the above IHL/IHRL issues, as well as about respect for human rights inside Israel in 2011, see specific inputs prepared by Israeli and Palestinian NGOs for the 2011 ENP Progress Report:

-          Submission by the Palestinian Council of Human Rights Organisations: “The Right to Water - A Policy of Denial and Forced Displacement in the Occupied Palestinian Territory”, http://www.alhaq.org/advocacy/targets/european-union/501-the-right-to-water-a-policy-of-denial-and-forced-displacement-in-the-occupied-palestinian-territory

-          Submission by Adalah, Public Committee Against Torture in Israel (PCATI), Physicians for Human Rights – Israel (PHR-Israel) and Al Mezan Center for Human Rights: “Combating torture and protecting the human rights of Palestinian detainees and prisoners incarcerated by Israel”, http://phr.org.il/uploaded/Joint%20Submission%20for%20ENP%20Torture%20Nov%202011.doc

-          Submission by Adalah Legal Centre for Arab Minority Rights in Israel, ”Major developments regarding the rights of Palestinian Arab citizens of Israel in 2011”, http://www.adalah.org/upfiles/Adalah%20ENP%20Briefing%20Paper%2030.11.2011.pdf

-          Submission by PHR-Israel about fair trial, rights in detention and the struggle against torture/cruel, inhumane and degrading treatment; discrimination in economic, social and cultural rights; freedom of association, expression and assembly and human rights defenders; IHL in the OPT, www.phr.org.il/uploaded/ENP%20submission%202011%20PHR-Israel.doc 

See also:

-          EMHRN Note in view of the EU-Israel Human Rights Working Group, September 2011: http://www.euromedrights.org/en/news-en/emhrn-releases/emhrn-statements-2011/10220.html

-          EMHRN Note in view of the EU-Israel subcommittee on political dialogue and cooperation, November 2011: http://www.euromedrights.org/en/news-en/emhrn-releases/emhrn-statements-2011/10701.html

 

Organization info

APRODEV is the association of the 16 major development and humanitarian aid organisations in Europe that work closely together with the World Council of Churches. Several APRODEV member organizations are present or work with partners in Israel and the Palestinian Occupied Territories. To find out more, visit: www.aprodev.eu

CIDSE is an international alliance of 16 Catholic development agencies. Its members share a common strategy in their efforts to eradicate poverty and establish global justice.  A number of CIDSE member organizations are actively involved in the region through partners in Israel and the occupied Palestinian territories. To find out more, visit: www.cidse.org.

The Euro-Mediterranean Human Rights Network (EMHRN) is network of more than 80 human rights organizations, institutions and individuals based in 30 countries in the Euro-Mediterranean region, which adhere to universal human rights principles and are convinced of the value of cooperation and dialogue across and within borders. To find out more, visit: www.euromedrights.org

For further information, please contact:

Agnes Bertrand (APRODEV), me.officer@aprodev.net

Deborah Casalin (CIDSE), deborah.casalin@broederlijkdelen.be

Nathalie Stanus (EMHRN), nst@euromedrights.net