The present report is submitted pursuant to resolution 19/17 in which the Human Rights Council decided to establish an independent international fact-finding mission to investigate the implications of the Israeli settlements on the human rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem.
1. At its nineteenth session, in resolution 19/17, the Human Rights Council decided to establish an independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem (OPT).
2. On 6 July 2012, the President of the Human Rights Council appointed three high-level experts as members of the fact-finding mission: Christine Chanet as Chair, Asma Jahangir and Unity Dow.
3. The Mission convened for the first time in Geneva in August 2012 and held meetings with concerned representatives of Permanent Missions and other relevant stakeholders. The Mission adopted its terms of reference in light of the mandate conferred by the Human Rights Council and considered that the resolution clearly instructed it to investigate all the human rights implications of the Israeli settlements for the Palestinians in the OPT. The Mission interpreted its mandate to require it to carry out its investigation within the legal framework provided by international human rights law together with other bodies of international law as relevant. The Mission notes that the Israeli settlements also have other implications, including for the rights of those residing inside the settlements and in Israel.
4. For the purpose of its work, the Mission understands “Israeli settlements”, hereinafter “settlements”, to encompass all physical and non-physical structures and processes that constitute, enable and support the establishment, expansion and maintenance of Israeli residential communities beyond the 1949 Green Line in the OPT.1 The Mission does not differentiate between “settlements”, “settlement blocks”, “outposts”, or any other structures that have been erected, established, expanded and/or appropriated or any land or natural resources appropriated.
5. Guided by the principles of “do no harm”, independence, impartiality, objectivity, discretion, transparency, confidentiality, integrity and professionalism, the Mission carefully analysed all available information that it considered relevant and credible.
6. To ensure the greatest availability of such information, the Mission issued a public call for written submissions, which it also directly shared with representatives of Israeli settler communities. In response to the call, it received 62 submissions. The Mission has analysed information from governments, inter-governmental organisations, international and national NGOs, professional bodies, academics, victims, witnesses and the media. The Mission did not receive any testimony or submission on an anonymous basis. All information received has been treated with appropriate confidentiality.
7. The Mission had expected to undertake field visits to Israel and the OPT in order to directly observe the situation on the ground. It addressed five requests for cooperation to the Israeli government through the Israeli Permanent Mission in Geneva. The Government of Israel did not respond to the Mission’s requests. The Mission regrets that the Israeli government did not respond and that it did not have access to Israel and the OPT. Alternative arrangements were made to obtain direct and first-hand information by holding a series of meetings with a wide range of interlocutors between 3 and 8 November 2012 in Jordan.
8. During its visit to Jordan, the Mission listened to and collected information on a wide range of relevant issues from more than 50 people affected by the settlements and/or working in the OPT and Israel. It met with victims of human rights violations, Jordanian Foreign Ministry officials, Palestinian Authority officials, international organisations, NGOs and UN agencies. The Mission has a record of all the testimony given to it.
9. This report is the product of the Mission’s consideration and analysis of all the submissions and information it has received and gathered.2 The Mission wishes to note that a number of interlocutors explicitly requested that their identities not be disclosed. The Mission is grateful to all those who extended their cooperation to it.
10. The international legal framework applicable to the issue before the Mission is primarily provided for in international human rights law and international humanitarian law.
11. Israel is bound to respect, protect, promote and fulfil the full range of the social, economic, cultural, civil and political human rights of all persons within its jurisdiction as a result of its being party to the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR), Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Israel is also bound by relevant international human rights rules which form a part of customary international law.
12. The rights protected by the human rights treaties must be available to all individuals who are in the territory or subject to the jurisdiction of Israel, except where the State has lawfully derogated from them. The UN treaty bodies which monitor the implementation of the applicable human rights treaties have consistently concluded that the treaties to which Israel is a party are applicable in respect of acts carried out by Israel in the OPT.3 This has been confirmed by the International Court of Justice (ICJ).4 Furthermore, Israel’s human rights obligations apply both in peace and times of armed conflict. In the latter situation, they continue to apply alongside international humanitarian law to provide complementary and mutually-reinforcing protection.
13. A situation of military occupation prevails in the OPT. As the occupying Power, Israel is bound under international humanitarian law by a set of obligations which are provided for in the Hague Regulations 1907, annexed to the Hague Convention IV respecting the Laws and Customs of War on Land 1907, which are recognised as forming part of customary international law, and Geneva Convention IV relative to the Protection of Civilian Persons in Time of War 1949 (“Fourth Geneva Convention”), to which Israel is a High Contracting Party.
14. The applicability of the Fourth Geneva Convention to the OPT has been decisively established by the International Court of Justice,5 and has been recognised and consistently reaffirmed inter alia by the Commission on Human Rights, Human Rights Council, Security Council, and General Assembly.6 Under the Fourth Geneva Convention, Palestinians living under occupation are “protected persons”, and thus the focus of Israel’s obligations under humanitarian law therein.
15. International humanitarian law establishes obligations on Israel inter alia concerning humane treatment and physical integrity of the Palestinians as protected persons; respect of their basic rights to education, fair trial, family, health, religion, and work; maintenance of public order and safety; respect of existing laws; respect and protection of real and personal property; and, the management of public property, including natural resources.
18. ‘Israeli settlements’ are located beyond the 1949 Green Line and include structures in East Jerusalem and in Area “C” of the West Bank. The Oslo Accords established Area “A” comprising approximately 18 per cent of the West Bank and encompassing urban Palestinian areas under full control of the Palestinian Authority; Area “B” representing about 22 per cent of the vast majority of Palestinian rural areas, under Palestinian civil control while the Israeli army has security control; and Area “C” comprising an estimated 60 per cent of the territory, under full Israeli control for security, planning and construction purposes. Settlements are generally located amongst the more vulnerable sections of Palestinian society, predominantly agrarian villages.
19. The Mission heard that settlers can broadly be divided into three categories. Those who have moved on quality of life grounds and live in settlements close to Jerusalem and Tel Aviv. Ultra-Orthodox Jews, who constitute over 25 per cent10 of the settler population, live in settlements largely isolated from other Israelis. Ultra-Orthodox Jews seem also to be motivated by economic incentives and cheaper housing and are generally found in settlements closer to the Green Line. A third group seems to be motivated by political and religious ideologies; they live in the central part of the West Bank, often very close to Palestinian communities.
20. Since 1967, Israeli Governments have openly led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements by including explicit provisions in the fundamental policy instrument (Basic policy guidelines), establishing governmental structures and implementing specific measures. These specific measures include: i) building infrastructure; ii) encouraging Jewish migrants to Israel to move to settlements; iii) sponsoring economic activities; iv) supporting settlements through public services delivery and development projects; and v) seizing Palestinian land, some privately owned, requisitioning land for “military needs”, declaring or registering land as “State Land” and expropriating land for “public needs”.
21. Government investment in the settlements has not been made explicit in the Public Budget, but allocated through hidden provisions in a process that has been described as “partially secretive”11 and “a political tool.”12 Government investment, excluding military expenses, has fluctuated over the years with an estimated peak of 795.8 million US dollars in 200513. Quasi-Governmental organizations, funded by the Government, including the World Zionist Organization (WZO), also provide funds to the settlements.
22. A governmental scheme of subsidies and incentives has been put in place to encourage Jewish migrants to Israel to move to settlements and to boost settlements’ economic development. Settlements have been defined as “National Priority Areas” and benefit from housing and education subsidies and direct incentives to the industrial, agricultural and tourism sectors.
23. Various sources refer to Settlement Master Plans, including the Allon Plan (1967), the Drobles Plan (1978) later expanded as the Sharon Plan (1981), and the Hundred Thousand Plan (1983). Despite these plans not having been officially approved they have largely been acted upon by successive Israeli Governments. The Mission notes a pattern where plans that were developed regarding the settlements were mirrored in Government policy instruments and implemented on the ground.
24. The first settlement established was Kefar Ezyon in September 1967. In the early years the establishment of settlements followed a typical pattern. The settlers had access to the highest ranking Government officials, played on their emotional ties to the land and encouraged these officials to lead and participate in establishing and expanding settlements through, inter alia, the seizure of land for “military purposes”.
25. In June 1967, Israel illegally annexed 70 km2 of land incorporating East Jerusalem and a number of nearby Palestinian villages into the expanded boundaries of Israel’s Jerusalem municipality. It promptly built twelve Israeli “neighbourhoods” which enveloped nearby Palestinian quarters and villages. An outer layer of settlements beyond the Municipal boundaries were then built severing the geographical continuity of the city from the rest of the West Bank. Since the 1970s, Israel’s Jerusalem municipality has openly pursued a policy of “demographic balance” most recently seen in the city master-plan also known as “Jerusalem 2000”. The master-plan calls for a 60/40 demographic balance in favour of Jewish residents.
26. Studies on settlements commissioned by the Office of the Prime Minister in 2005 (Sason report) and 2012 (Levy report) document the Government’s authorization in the establishment and expansion of settlements up to 1992 and indicate that settlements built afterwards with no Government authorization (“outposts”) were established with the “full knowledge of all [authorities], starting with the government ministers and prime minister, and until the lowest enforcing agencies (…) the denial had but one goal only: to withstand criticism by various factors, mostly international”.14 Sason concluded that “unauthorized outposts violate[s] standard procedure, good governing rules (…) endanger the principal of the rule of law [and thus] urgent measures must be taken to change [this] reality”15. In contrast the findings of the Levy report suggested the retroactive authorization of “outposts”.
29. After years of court orders, evacuations of the Migron and Ulpana “outposts” took place in 2012. However, settlers responsible for appropriating private Palestinian land without Government authorization were provided after the evacuation with new homes in nearby settlements. The Government paid for the transfer of their property and the rental on the new homes.
31. The Mission notes that the impact of settlements on the human rights of the Palestinians is manifested in various forms and ways. These are interrelated, forming part of an overall pattern. The structure of the report is intended to reflect this reality.
32. The Mission notes that in its Resolution 67/19, the General Assembly “reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian Territory occupied since 1967”.
35. The Israeli government has full security and administrative control over the settlement areas, and effectively controls the external borders of the OPT. Regional councils composed exclusively of representatives of Israeli settlers exercise planning functions in settlement areas. Neither the Palestinian Authority nor local Palestinian communities have any control over the governance, administration and planning of these areas.
36. The settlements, including the associated restrictions, impede Palestinian access to and control over their natural resources. The Secretary General has noted that “Palestinians have virtually no control over the water resources in the West Bank”. Eighty-six per cent of the Jordan Valley and the Dead Sea is under the de facto jurisdiction of the settlement regional councils. Settlements exploit mineral extraction and fertile agricultural lands, denying Palestinians access to their natural resources.
37. In December 2012, OCHA reported that while the fenced areas of settlements cover only three per cent of the West Bank, in reality 43 per cent of the territory is allocated to settlement local and regional councils. There are approximately 150,000 Palestinians living in Area C in close proximity to over 320,000 Israeli settlers. In East Jerusalem, about 200,000 settlers have been inserted into Palestinian areas with a Palestinian population of about 390,000. The negative impact of Israeli settlements on the right of self-determination of the Palestinian people, however, extends to the Palestinian people as a whole.
38. The Mission considers that the right to self-determination of the Palestinian people, including the right to determine how to implement self-determination, the right to have a demographic and territorial presence in the OPT and the right to permanent sovereignty over natural resources, is clearly being violated by Israel through the existence and ongoing expansion of the settlements. The transfer of Israeli citizens into the OPT, prohibited under international humanitarian law and international criminal law, is a central feature of Israel’s practices and policies.
39. Information presented to the Mission demonstrates that distinct legal systems exist in the OPT and are applied separately to Israeli settlers and Palestinians. Broadly, Israelis in Area C are subject to Israeli domestic law enforced by the police and courts in Israel. A patchwork of Israeli military orders and Ottoman, British and Jordanian legislation is applied to Palestinians, who are also subject to a military court system with a wide jurisdictional reach.
40. Through “channelling” Israeli civil law into the territory of settlements, “legal zones” have been established within the West Bank where Israeli laws apply to settlers in order, for example, to regulate the status and authority of governmental institutions within settlements. These laws do not apply to Palestinians. Other Israeli laws are applied personally to Israelis in the West Bank, giving them preferential legal status over Palestinians. A matrix of military orders applies personally, by law or by practice, only to Palestinians to regulate and control most aspects of daily life, including by restricting an extensive range of rights. Israelis and Palestinians are also treated differently by the same laws. For instance, some military orders designate areas in the OPT as “closed military zones/areas”. With the exception of military training or firing zones, only Palestinians are prohibited from entering such areas unless they have a permit, even if the area encompasses Palestinian land, thereby denying Palestinians access to or ownership of land. The so-called “seam zone” is closed to Palestinians, while Israelis and foreign visitors have unrestricted access. Certain other Israeli laws expressly discriminate against Palestinians. In 2012, the Committee on Elimination of Racial Discrimination reiterated its concern about the Citizenship and Entry into Israel Law (Temporary Provision) that suspends, with rare exceptions, family reunification between an Israeli citizen and a person residing in the OPT, with a severe impact on family rights.
41. The Mission notes that the extraterritorial personal application of Israeli legislation also occurs with the application of Israeli criminal law to Israelis in the West Bank with respect to offences they allegedly committed there.
42. The Secretary-General has stated that the “lack of accountability permeates all types of acts of violence committed by Israeli settlers against property and persons.”25 The situation today closely resembles that described by the 1984 inquiry into action taken with regard to settler violence headed by the then Israeli Deputy Attorney General, Yehudit Karp. According to the Israeli NGO Yesh Din, which has monitored 869 cases between 2005 and 2012, over 91 per cent of all concluded investigations into complaints of criminal offences against Palestinian persons and property in the OPT are closed without an indictment being served, mostly due to investigative failures.26 This is despite the fact that attacks and intimidation by settlers against Palestinians often are carried out in daytime and in the presence of Israeli army or police personnel, who frequently do not stop the violence or are ineffective.
43. The Mission has been informed that when acts of violence are committed by Palestinians against settlers, these are appropriately addressed, indicating that the lack of law enforcement experienced by Palestinians is largely a matter of political will. Between 90 to 95 per cent of cases against Palestinians are investigated and go to court.
44. The failure to carry out effective investigations and prosecutions of settler violence impedes the Palestinians’ access to an effective remedy. This is exacerbated by the multiple barriers presented to Palestinians by the court system, including time, cost, language, and procedural barriers, coupled with inadequate notification of relevant orders and declarations. Fear and lack of confidence in the courts also act as deterrents to seeking redress. Palestinians are also significantly limited from seeking compensation from the Israeli state for certain conduct by its agents pursuant to the Civil Torts (Liability of the State) Law 2005, as amended in 2012.
45. The Israeli Supreme Court sitting as the High Court of Justice does not offer Palestinians a clear avenue for recourse. The High Court has consistently deferred to the Israeli government on matters relating to the settlements, and has rendered the question of the legality of the settlements non-justiciable. While on occasion the Court has found in favour of Palestinian petitioners, it has both substantially limited its oversight role and provided a legal space in which the settlements have been developed. Additionally, where judicial rulings have favoured the Palestinian petitioners, there is a consistent lack of enforcement of them.
46. Palestinians in the OPT suffer discriminatory application of a military court system that does not comply with international standards of fair trial and administration of justice.27 As explained to the Mission, “two individuals in the West Bank may commit the same offence. One is investigated by the police in the West Bank and brought before a military court, and can be detained up to eight days without seeing a judge. The Israeli who has done the same, is investigated and brought before a civilian judge, and enjoys all the safeguards of a modern criminal process. Both face different penalties (…).”28 The prevailing legal systems in OPT translate into stark inequality before the law.
47. Palestinians are routinely subject to arbitrary arrest and detention, including administrative detention and mass arrests and incarceration. It is estimated that over 700,000 Palestinians, including children, have been held in Israeli military detention since the beginning of the occupation, many in prisons located within Israel.29 In 2012, approximately 4,100 Palestinians were in Israeli military detention, of which 143 were aged between 16 and 18 years, and 21 were below 16 years old.30 It is well-documented that the military court system does not ensure Palestinians their basic fair trial guarantees, including minimum standards of independence, clear evidentiary or procedural rules, the presumption of innocence, or the duty to hear witnesses or examine all material evidence.
49. The legal regime of segregation operating in the OPT has enabled the establishment and the consolidation of the settlements through the creation of the privileged legal space for settlements and settlers. It results in daily violations of a multitude of the human rights of the Palestinians in the OPT, including incontrovertibly violating their rights to nondiscrimination, equality before the law and equal protection of the law.
50. All spheres of Palestinian life are being significantly affected by a minority of settlers who are engaged in violence and intimidation with the aim of forcing Palestinians off their land. There is a consistency in the testimonies as to the following facts: the attacks and intimidation regularly take place during daylight hours; the identity of perpetrators are well known or could easily be identified; the frequent presence of police and army at the scene; the involvement and presence of settlement security officers; the frequent existence of video and photographic footage of the incidents; the lack of accountability for the violence.
52. The Mission heard numerous testimonies on violent attacks by settlers, including physical assaults on the person, the use of knives, axes, clubs and other improvised weapons, as well as shootings and throwing Molotov cocktails. The testimonies also recounted the psychological impact of the intimidation from armed settlers trespassing on Palestinian land, at Palestinian water springs or in the midst of Palestinian neighbourhoods in Hebron and East Jerusalem. In some cases, testimonies described years of violence and intimidation directed at the same Palestinian family living in proximity to settlements which have pushed it to abandon its properties.
53. The Mission heard testimony on the impact of settler violence on children and notes an increasing trend in their death and injuries. Defence of Children International-Palestine has documented 127 cases in the West Bank, including East Jerusalem, including four fatalities, since 2008.36 Settler attacks on schools and harassment of children on their way to school is showing an upward trend since 2010. Testimonies to the Mission from residents of Al Twanyi village describe how children must have Israeli army escorts on their way to and from school to protect them from settlers’ attacks. These escorts are not always provided by the Israeli army or, when provided, are often erratic.
56. The Mission is concerned that specific programmes to deal with the impact of settler violence on physical and mental health had to be developed by non-governmental organizations as a result of the failure of Israeli authorities to stop the settler violence and the persistence of impunity in this regard. The Mission notes with particular concern the situation of children and the impact on their development.
57. Violence, verbal and physical abuses, inhumane and degrading treatments, forced evictions, land and property grabbing, destruction of property and housing and many of the issues for which testimonies and information was gathered gravely affect the right to the enjoyment of the highest attainable standard of physical and mental health. Depression, anxiety, symptomatic stress, mood disorder and behaviour problem, and Post Traumatic Stress Disorders are some of the most current conditions reported by specialists. Impunity, the feeling of injustice, recurrence of events and the anticipation of renewed abuses, especially on relatives and children, lead to worsening of these conditions.
58. In the OPT, Jerusalem, Hebron, Bethlehem and Nablus all hold places of considerable religious significance for Christianity, Judaism and Islam. While the impacts of settlements manifest in various forms throughout the West Bank, the Mission notes that both Jerusalem and Hebron have been targeted by particularly aggressive settlement policies and practices due to their religious significance. Settlements have been established in the heart of both cities, disrupting the lives and the development of hundreds of thousands of Palestinians. In addition, major settlement infrastructure has been built around Jerusalem and, to a lesser extent, Hebron, enveloping them and severing social and economic ties with the rest of the Palestinian society, while linking the various settlements and the territory of the State of Israel.
59. The Mission was also informed about archaeological excavations being conducted in and around the Old City of Jerusalem and the building there of a network of underground tunnels, including those connecting settlement installations in the Palestinian neighbourhood of Silwan with the Old City. It has been alleged that these archaeological excavations intend to emphasise the Jewish cultural heritage while disregarding – or worse undermining – the rich heritage of other cultures that have contributed to the millenary history of the city.
61. The Mission is concerned that policies and acts aiming at altering the composition of Jerusalem and Hebron by erasing cultural heritage on the basis of religious affiliation, together with redrawing municipal boundaries, are being carried out with the involvement of the Israeli government with pernicious effects. It is further concerned that the Palestinians’ right to freedom of religion is being restricted due to the settlements.
63. Since the beginning of the occupation, Palestinians have seen over a million dunums44 of their land seized, enabled by a combination of military orders and selective interpretation of the Ottoman Land Code that ruled land tenure throughout the Ottoman, Mandatory and Jordanian periods. In particular, land has been lost through seizure for military needs, absentee property laws, and declarations of State lands.
64. Seized lands are placed within the jurisdictional boundaries of local and regional settlement councils, used not only for urbanization, but also as buffer zones surrounding settlements or turned into recreational and nature areas which cannot be accessed by Palestinians.
65. While the issue is critical throughout the West Bank, the Mission notes the high number of demolitions, demolition orders, forced evictions and “relocation” plans in zones identified for the consolidation of settlements, including around Bethlehem and the E1 project, aimed at creating an urban continuum between East Jerusalem and Ma’ale Adummim. In this area, the Jahalin Bedouin community in Khan Al-Akhmar, which in the past has experienced several demolitions, lives under the threat of forcible displacement. “Relocation” plans are currently under discussion, including to a location near a landfill where in 1996 Bedouins had already been relocated to in connection with earlier settlement expansions.
66. Bedouin communities in general are particularly vulnerable to displacement and dispossession. Eighty per cent of them live in the Jordan Valley, the Dead Sea area and around Hebron, constituting the majority of the population in closed military training and firing zones. Many of these communities have already experienced multiple displacements. Many are food insecure, do not have access to basic services, and are connected neither to the electricity grid, the road network or water systems. Over 90 per cent face water scarcity, living with less than one-quarter of the World Health Organization (WHO) minimum standards.45 The Israeli army demolishes routinely their shelters and property, including those provided by or built with the assistance of aid agencies and international donors. In the South Hebron hills, eight villages are at risk of eviction to make way for a new firing zone.
67. The processes of dispossession and displacement in the vicinity of settlements and the seam zone include preventing Palestinians from accessing their agricultural lands, the takeover and demolition of springs and wells, and movement restrictions. Settler violence and intimidation also play a significant role.
68. In East Jerusalem, multiple factors such as the discriminatory building regulations, high number of demolition orders, residence permit restrictions, the acute housing shortage and violence and intimidation from settlers place enormous pressures on the city’s Palestinian population. Cases of forced eviction in East Jerusalem, such as in Sheikh Jarrah neighbourhood were also reported to the Mission, including following successful appeals by settler organizations, some of which linked to Jewish property claims based on their pre-1948 ownership. Numerous testimonies speak of settlers taking over individual houses within the Old City.
69. Absence of proof of registration- land registration was discontinued by military order in 1968 - makes it extremely difficult for Palestinians to obtain recognition of tenure or permits. Besides, Palestinians are excluded from consultative decision-making processes and are not represented in the Special Planning Committees, which consist of settlers and are enabled to issue and enforce building permits.
70. Testimonies confirmed that building permits are rarely if ever granted; in the last 20 years, 94 per cent of permit applications were denied. Building without a permit is an offence under military orders, and the execution of a demolition order is accompanied by a high fine. The mission heard in this regard about “self-demolitions”- i.e., residents demolishing their own houses to avoid paying fines. Self-demolitions are not recorded in statistics on demolitions.
72. The Mission received information that the vast majority of restrictions on the freedom of movement of Palestinians seem to be directly linked to the settlements and include “restrictions aimed at protecting the settlements, securing areas for their expansion, and improving the connectivity between settlements and with Israel itself.”47 The restrictions themselves come in many forms including settler-only roads, a regime of checkpoints and crossings (closure obstacles), impediments created by the Wall and its gate and permit regime as well as administrative restrictions. OCHA reports that in 2012 over 540 closure obstacles existed48 and though there have been significant easing measures in recent years - which have improved connectivity between the main Palestinian cities and towns - reportedly the movement restrictions remain in place in areas around settlements.
73. The Mission notes that restrictions on freedom of movement have a detrimental impact on Palestinian access to their land with direct consequences for their ability to work and earn their livelihood. The outer expanses of many of the settlements incorporate Palestinian private property and access to this land is regulated through the “prior coordination” regime whereby the Palestinian landowners are granted permits to access their land for a limited number of days per year, normally coinciding with harvest time and based on prior coordination with the Israeli authorities. This regime is in place for Palestinian landowners in some 90 communities with land in the environs of some 55 settlements.49 In some cases the prior coordination regime is applied to Palestinian private land which has been unilaterally fenced off by settlers without authorisation by Israeli authorities. The widespread access restrictions in and around the Wall in the form of gate and permit regimes particularly impact access to agricultural land in the seam zone and, as noted in paragraph 41, these restrictions only apply to the Palestinian population.
74. Israel has extended the prior coordination regime to situations where Palestinians face potential settler violence and intimidation. This response has been ineffective in terms of preventing settler violence, while it places the burden of restricting access to land on the victims of settler violence.
79. The Mission was informed that Israeli politicians, academics and civil society actors voicing criticism of the settlements are discredited in public discourse. An example of this includes the targeting of veteran combatants who have served in the Israeli military in the OPT and who voice dissent with the official line of the establishment. The Mission acknowledges the valuable contribution made by members of Israeli civil society in highlighting the denial of human rights to the Palestinians due to the presence of the settlements.
80. Information and testimonies corroborate the impact of settlement expansion on the right to water of Palestinians, including as pointed out inter alia by the Committee on Economic, Social and Cultural Rights, the high discrepancy between water allocation for Palestinians and settlers, and inequitable access.
81. The capacity of the Palestinian Water Authority (PWA) to develop new water resources is hampered by the water management arrangements governed by the Interim Agreement and the Joint Water Commission (JWC) that it established, in which “fundamental asymmetries – of power, of capacity, of information” give Israel predominance in the allocation of West Bank water resources, of which it withdraws 90 per cent.55 The Mission learnt that a large number of Palestinian projects are rejected by the JWC. In Area C, approval is further required from the Israeli Civil Administration, even for small-scale projects such as a well or rainwater collection cistern.
82. The PWA’s ability to transfer water to areas facing water shortages is severely inhibited by the territorial fragmentation, since almost every project implies movement through Area C. The Mission heard testimony about water resources damaged or destroyed by the construction of the Wall or lost to the seam zone, cutting off villages from their wells, springs and cisterns. In the Jordan Valley, deep water drillings by the Israeli national water company Mekorot and the agro-industrial company Mehadrin have caused Palestinian wells and springs to dry up. Eighty per cent of the total water resources drilled in the area is consumed by Israel and the settlements.
83. The lack of availability of Palestinian water resources has led to chronic shortages among Palestinian communities in Area C and a dependence on Mekorot, to whom authority over the West Bank water resources was transferred from the military in 1982.
84. Mekorot supplies almost half the water consumed by Palestinian communities. The Mission heard that Palestinians do not have access to Israeli recycled water available to settlements, and have to use water from the more expensive drinking water supply for irrigation purposes. In the event of a water shortage, valves supplying Palestinian communities are turned off; this does not happen for settlements.
85. The Mission heard of situations where villagers must travel several kilometres to get water when closer water resources serve neighbouring settlements. Settlements benefit from enough water to run farms and orchards, and for swimming pools and spas, while Palestinians often struggle to access the minimum water requirements. The Mission heard that some settlements consume around 400 l/c/d56, whereas Palestinian consumption is 73 l/c/d, and as little as 10-20 l/c/d57 for Bedouin communities which depend on expensive and low quality tanker water. In East Jerusalem houses built without a permit cannot connect to the water network.
86. Water shortages are further exacerbated by restrictions on movement, destruction of infrastructure, expropriations, forced evictions and settler violence, which also largely contributes to diminishing access to water for Palestinians.
87. Forcible takeovers and vandalism by settlers increasingly impair access to water. In March 2012, according to OCHA, 30 springs in the vicinity of settlements had been completely taken over by settlers and 26 were at risk, with settlers fencing them off and threatening villagers. Some of the seized springs are turned into “tourist attractions” or recreational sites, which receive Israeli government support.
88. Destruction of water infrastructure, including rainwater cisterns, by Israeli authorities has increased since the beginning of 2010; double in 2012 compared to 201158. The denial of water is used to trigger displacement, particularly in areas slated for settlement expansion, especially since these communities are mostly farmers and herders who depend on water for their livelihoods. A number of testimonies highlighted that the cutting off from water resources often precedes dispossession of lands for new settlement projects.
89. The agricultural sector, considered the cornerstone of Palestinian economic development, has not been able to play its strategic role because of dispossession of land and the denial of access for farmers to agricultural areas, water resources and domestic and external markets. This has led to a continuous decline in the share of agricultural production in GDP and employment since 1967.
90. Settlement expansion and its related infrastructure have eroded Palestinian agricultural assets. Dwindling water resources, high transaction and transport costs and shrinking markets have led to a decline in the size of agricultural holdings. It has also resulted in a shift from irrigated to less profitable rain-dependent crops, and a decrease in productivity since the import of fertilizers into the West Bank is banned for Palestinians. Besides demolitions carried out by the authorities, villagers suffer recurrent attacks from nearby settlements – especially during the olive harvest season – the destruction of trees, water installations and livestock, creating additional pressure to relinquish agricultural activities.
91. The Wall has divided villages, cut off farmers from their lands and water and curtailed trade with traditional markets, stifling the local economy. This is illustrated by the example of the village of Nazelt Issa, where half of the businesses existing before were destroyed to build the Wall while other activities closed down, given that most of their trade was with neighbouring villages now cut off by the Wall. With few income-generating prospects left in the village, unemployment is high, and young people leave to seek work.
92. The Mission was informed that “Israeli settlement agriculture is blooming”59. In the Jordan valley settlements set up in the 1960s-1970s as farming communities on land formerly cultivated by Palestinians, have developed into a high-tech irrigation agricultural zone and become major contributors to the Israeli export of date palm fruits. In the central West Bank many agricultural settlements have been developed in the last ten years, cultivating olives and grapes for wine making in Israel. Many Israeli cultivated areas correspond to lands which were cultivated by Palestinians until the second intifada (2000-2005).
95. Employment conditions of Palestinian workers in settlements are subject to a system characterised by legal uncertainties. Palestinians are contracted under the far less favourable pre-1967 Jordanian labour laws while Israeli citizens in the West Bank are employed under Israeli labour laws. In 2007, the Israeli High Court ruled that Israeli labour laws also apply to Palestinian workers, but the ruling – which left open the possibility for the parties to agree otherwise – is often not enforced. Numerous interlocutors told the Mission that this “cheap labour” from the numerous Palestinian villages in convenient commuting distance represents an additional incentive for enterprises to move to the settlements.
• Use of benefits and reinvestments of businesses owned totally or partially by settlers for developing, expanding and maintaining the settlements.
97. It is with the full knowledge of the current situation and the related liability risks that businesses unfold their activities in the settlements and contribute to their maintenance, development and consolidation. Industrial parks in settlements, such as Barkan and Mishor Adumim, offer numerous incentives including tax breaks; low rents, and low cost of labour. Economic activities in these zones are growing. A number of banks provide mortgage loans for homebuyers and special loans for building projects in settlements. They also provide financial services to businesses in settlements and, in some cases, are physically present there.
98. The Mission notes that some businesses have pulled out of settlements because it harms their image and might entail legal consequences.
99. It also notes that Israel labels all its export products as originating from “Israel”, including those wholly or partially produced in settlements. Some companies operating in settlements have been accused of hiding the original place of production of their products. This situation poses an issue of traceability of products for other states wishing to align themselves with their international and regional obligations. It also poses an issue in relation to consumers’ right to information. The Mission notes that these issues are increasingly being addressed by states, regional organizations and some private businesses.
100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.
101. The establishment of the settlements in the West Bank including East Jerusalem62 is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.
102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.
control to the detriment of the rights of the Palestinian population.
104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law”, including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.
105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.
106. The volume of information received on dispossession, evictions, demolitions and displacement points to the magnitude of these practices. These are particularly widespread in certain areas and acute in East Jerusalem.
107. The Mission has noted that the identities of settlers who are responsible for violence and intimidation are known to the Israeli authorities, yet these acts continue with impunity. The Mission is led to the clear conclusion that there is institutionalized discrimination against the Palestinian people when it comes to addressing violence. The Mission believes that the motivation behind this violence and the intimidation against the Palestinians as well as their properties is to drive the local populations away from their lands and allow the settlements to expand.
108. The Mission is gravely concerned at the high number of children who are apprehended or detained, including for minor offences. They are invariably mistreated, denied due process and fair trial. In violation of international law they are transferred to detention centres in Israel.
109. Children suffer harassment, violence and encounter significant obstacles in attending educational institutions, which limits their right to access education. Israel, the occupying Power is failing in its duty to protect the right to access education of the Palestinian children and failing to facilitate the proper working of educational institutions.
110. Information gathered by the Mission show that some private entities have enabled, facilitated and profited, from the construction and growth of the settlements, either directly or indirectly.
111. Women alone in their homes, the Bedouins and other vulnerable groups are easy targets for settler violence, creating a sense of insecurity amongst the wider Palestinian society.
112. Israel must, in compliance with article 49 of the Fourth Geneva Convention, cease all settlement activities without preconditions. In addition it must immediately initiate a process of withdrawal of all settlers from the OPT. The Mission further urges Israel to ensure adequate, effective and prompt remedy to all Palestinian victims for the harm suffered as a consequence of human rights violations that are a result of the settlements in accordance with Israel’s international obligation to provide effective remedy. Where necessary, steps must to be taken to provide such remedy in concurrence with the representatives of the Palestinian people and with the assistance of the international community.
113. Israel must put an end to the human rights violations that are linked to the presence of settlements.
114. The Mission calls upon the government of Israel to ensure full accountability for all violations, including for all acts of settler violence, in a non-discriminatory manner and to put an end to the policy of impunity.
115. The Mission urges Israel to put an end to arbitrary arrest and detention of the Palestinian people, especially children, and observe the prohibition of the transfer of prisoners from the OPT to the territory of Israel, according to Article 76 of the Fourth Geneva Convention.
116. The Mission calls upon all Member States to comply with their obligations under international law and to assume their responsibilities in their relationship to a State breaching peremptory norms of international law – specifically not to recognise an unlawful situation resulting from Israel’s violations.
117. Private companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure they are not adversely impacting the human rights of the Palestinian People in conformity with international law as well as the Guiding Principles on Business and Human Rights. The Mission calls upon all Member States to take appropriate measures to ensure that business enterprises domiciled in their territory and/or under their jurisdiction, including those owned or controlled by them, that conduct activities in or related to the settlements respect human rights throughout their operations. The Mission recommends that the Human Rights Council Working Group on Business and Human Rights be seized of this matter.
· The “Declaration of the Establishment of the State of Israel” is issued. It equates Eretz-Israel (in Hebrew “the Land of Israel”) to the territory of British Mandate Palestine1, in contrast to the provisions of 1947 United Nations General Assembly Resolution 181 on the partition of the British Mandate of Palestine into two Independent Arab and Jewish States with a special international regime for the City of Jerusalem2.
· The Law and Administration Ordinance 5708-1948 is enacted. Article 15 indicates that: “(a) ‘Palestine’, wherever appearing in the law, shall henceforth be read as ‘Israel’”5 disregarding 1947 UN Resolution 181 partitioning British Palestine into two States, Arab and Jewish6.
· The “Absentee Property Law” 1950 enables the Israeli Government to transfer the property left behind by Palestinians after the 1948 War for the exclusive use by Israel. The Law defines any Palestinian who ‘left his ordinary place of residence’ for a place outside the nascent state as an ‘absentee’. The definition is broadly interpreted and includes Palestinians who are deemed to have been absent, even though they are present within the territory of Israel. Such persons are termed “present absentees”.
· Israeli Prime Minister Menachem Begin (1977-1981) presents his basic policy guidelines to the Knesset. Paragraph 9 indicates the Government’s support for the development of Israeli settlements throughout a land that goes beyond the green line: “Settlement in Eretz Yisrael is a right as well as an integral part of the nation’s security. The Government will act to achieve the strengthening, the widening and the development of Jewish settlement...”29 (20 June).
· Israeli Deputy Attorney General Yehudit Karp is appointed to head a team looking at investigations and legal actions taken with regards to Israeli settler violence and intimidation in OPT. The report’s findings identified: an unusually high number of files closed for reasons of “perpetrators unknown”; an indulgent and forgiving attitude from the police towards the settlers; in some cases no sincere efforts to find culprits; no questioning of witnesses; unreasonable lengths of time and a lack of sensitivity in investigations. The report observes that, “Israeli residents of the territories are given to understand that they are soldiers to all intents and purposes. [...] Israeli residents of Judea and Samaria [West Bank], explicitly relying on this assurance, refuse to cooperate with the police or provide information; they reject any contact with the police, basing themselves on ‘high-level policy’ and declaring that they are under no obligation to cooperate in this matter.”42 The report is not released by the Government of the day, only appearing in truncated form in 1984, 20 months after its submission by the Karp team.
· A Committee led by Haim Klugman, director-general of the Israeli Ministry of Justice, examines the transfer of expropriated Palestinian property in East Jerusalem from the State to settler organisations like Elad and Ateret Cohanim. The report found that the Custodian for Abandoned Properties effectively served as an institution to dispossess Palestinians of their land and property.
· Israeli Prime Minister Ariel Sharon (2001-2006) presents to the Knesset his basic policy guidelines. The eighth national goal (out of ten) is: “To strengthen, expand, and promote settlement throughout the country.” The settlement policy follows the same line of the prior Government: “2.9 During its term of office, the Government will not establish new settlements. The Government will provide for ongoing needs in the development of existing settlements.”58 (7 March).
· The US led Sharm El-Sheikh Fact-Finding Committee Report, known as the “Mitchell Report”, is presented. It says that “[d]uring our last visit, we observed the impact of 6,400 settlers on 140,000 Palestinians in Hebron and 6,500 settlers on over 1,100,000 Palestinians in the Gaza Strip (...) we note that many of the confrontations (…) occurred at points where Palestinians, settlers, and security forces protecting the settlers, meet (...) restrictions on the movement of people and goods in the West Bank and Gaza Strip (closures) [have resulted in the] destruction by Israeli security forces and settlers of tens of thousands of olive and fruit trees and other agricultural property. The closures have had other adverse effects, such as preventing civilians from access to urgent medical treatment and preventing students from attending school.
· The total reported number of settlements built with no Government authorization (“outposts”) increases to 93.61 (July).
1These include inter alia the Wall; checkpoints, closure obstacles, bypass roads, tunnels and permit system; legal systems; commercial and industrial infrastructure; planning and zoning regimes. Note that the term “Wall” denotes the physical barrier constructed by Israel since 2002. See Annex II, Map.
4 2004 ICJ Advisory Opinion, paras. 109-113.
5 2004 ICJ Advisory Opinion, para. 101.
6 E.g.: Commission on Human Rights resolutions 6 (XXIV), 6 (XXV), 2001/7; Human Rights Council resolutions 7/18, 10/18, 19/17; Security Council resolutions (1969) 271, (1979) 446, (1989) 641, (1990) 681, (1992) 799; General Assembly resolutions 2546, ES-10/2, 36/147 C, 54/78, 58/97, ES-10/18, 66/225.
7 E.g., 2004 ICJ Advisory Opinion, para. 120; Security Council resolution (1980) 471; General Assembly resolutions 3092, 47/172, 66/225; Commission on Human Rights resolution 2000/8; Human Rights Council resolutions 13/7, 16/31; Council of the European Union, Conclusions on the Middle East Peace Process, 3166th Foreign Affairs Council Meeting, 14 May 2012.
9 See Annex I for Timeline of the key events in relation to the Israeli settlements in the OPT.
10 Dror Etkes and Lara Friedman, “Report for Peace Now”, October 2005.
11 Former Head of the Israeli Civil Service Commission (1994-1996), Itzhak Galnoor, Nov 2007.
13 US Congressional Research Service Report 7-5700 RL33222 “U.S. Foreign Aid to Israel” by Jeremy M. Sharp, 12 March 2012.
14 Haaretz”A Harsh Indictment”, 21 November 2012.
15 Talya Sason, “Summary of the Opinion Concerning Unauthorized Outposts”, 8 March 2005.
16 Idith Zertal and Akiva Eldar, “Lords of the Land”, 2005.
17 Office for the Coordination of Humanitarian Affairs (OCHA), “The Humanitarian Impact of Israeli Settlement Policies, Update”, December 2012.
18 OCHA, “East Jerusalem: Key Humanitarian Concerns, Update”, December 2012.
19 Israeli Central Bureau of Statistics.
20 Haaretz “Israeli government spent NIS 1.1 billion on settlements in 2011, reports show”, 31 July 2012.
21 Haaretz “Like a thief in the night” Haaretz editorial, 14 November 2012.
23 B’Tselem, “The Establishment and Expansion Plans of Ma’ale Adummim and their Human Rights Ramifications”, December 2009.
24 B’Tselem, “The Long Term Impact of Israel’s Separation Barrier in the West Bank”, October 2012; “Israeli Settlement Policy in the West Bank”, July 2010.
26 Yesh Din, “Position paper submitted to the international fact finding mission appointed to investigate the impact of the settlements on Palestinian rights in the West Bank”, November 2012.
27 Regarding Israel’s derogation to article 9, see CCPR/CO/78/ISR (21 August 2003), para. 12 CCPR/C/ISR/CO/3 (3 September 2010), para. 7.
28 Testimony to the Fact-finding Mission, November 2012.
29 A/HRC/7/17, para. 45; B’Tselem, “Statistics on Palestinians in the custody of Israeli security forces” (2012).
30 B’Tselem, “Statistics on Palestinians in the custody of Israeli security forces (2012)”.
31 Submission to the Fact-finding Mission, October 2012.
32 See Defense for the Children International-Palestine Section, “Children Prosecuted in Israeli military courts – update”, 2 October 2012.
34 Security Council Resolution 446 established a Commission “To examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem” paragraph 95, 195.
35 Statistics compiled by OCHA.
36 Submission to the Fact-finding Mission, October, 2012.
37 The Palestinian Ministry of Agriculture estimates 3.5 million olive trees have been destroyed since the second intifada.
38 Yesh Din, “Police Investigation of Vandalisation of Palestinian Trees in the West Bank”, October 2012.
39 OCHA, “Olive Harvest Factsheet”, October 2012.
40 An-Najah University, “Outposts and Price Tag Violence”, September 2012.
41 US State Department, “Country Reports on Terrorism 2011”.
42 An-Najah University, “Outposts and Price Tag Violence”, September 2012.
44 One dunum equals 1000 m2.
45 OCHA, “Firing Zones in the West Bank Factsheet”, August 2012.
46 OCHA, “East Jerusalem: Key Humanitarian Concerns”, December 2012.
47 OCHA, “West Bank Movement and Access Update”, September 2012, p2.
48 OCHA, “The Humanitarian Impact of Israeli Settlement Policies, Update”, December 2012.
49 OCHA, “West Bank Movement and Access Update”, September 2012.
54 B’Tselem, “Human Rights on Occupied Territories Annual Report”, 2011, page 50.
55 World Bank, “West Bank and Gaza Assessment of Restrictions on Palestinian Water Sector Development”, April 2009, para. 130.
56 Litres per capita per day. Minimum recommended by WHO, 100 l/c/d.
57 OCHA Factsheet - The Humanitarian Impact of Israeli-declared “Firing Zones” in the West Bank, (August 2012).
58 Testimony to the Fact-Finding Mission, November 2012.
60 International Labour Organization, “The Situation of Workers of the Occupied Arab Territories, June 2012, para. 87.
61 Audit by the State Controller, Israel, 2011.
62 See Annex II, Map.
60 Sharm El-Sheikh Fact-Finding Committee Report “Mitchell Report” April 30, 2001. By Suleyman Demirel, Thorbjoern Jagland, Warren B. Rudman, Javier Solana and George J Mitchell (Chairman).
63 Talya Sason, Summary of the Opinion Concerning Unauthorized Outposts, Israeli Prime Minister’s Office, Communications Department, 8 March 2005.
67 B’Tselem, “Levy Committee Report: Where are the Palestinians?” 11 July 2012.
70 Peace Now “Summary of Year 2012 in Settlements” report.
10 ICAHD submission to the Fact-Finding Mission http://icahd.org/node/429 11 B’Tselem, Land Grab, 2002.
13 B’Tselem, A Policy of Discrimination: Land Expropriation, Planning and Building in East Jerusalem, May 1995.
19 B’Tselem, A Policy of Discrimination: Land Expropriation, Planning and Building in East Jerusalem, May 1995.
20 One dunum equals 1000 m2.
21 Idith Zertal and Akiva Eldar, “Lords of the Land”, 2005.
25 Idith Zertal and Akiva Eldar, “Lords of the Land”, 2005.
29 Israeli Ministry of Foreign Affairs “Basic guidelines of the government- 20 June 1977, 20 Jun 1977, Volume 4-5: 1977-1979” www.mfa.gov.il The 9th paragraph of policy guidelines presented in 1977 is quoted to in the presentation of Begin’s policy guidelines in his second tenure in office on 5 August 1981.
47 Applied Research Institute, Jerusalem (ARIJ) “Undermining Peace: ‘Israel’s Unilateral Segregation Plans in the Occupied Palestinian Territory’” 2003.