Israel: International Human Rights Obligations are “Not a Matter of Auto-Interpretation”

On 20 October 2014, the United Nations Human Rights Committee (HRC) reviewed Israel's fourth periodic report at its 122th session held in Palais Wilson, Geneva. The review, which aims at assessing a State's implementation of the 1966 International Covenant on Civil and Political Rights (ICCPR) takes the form of a day-long interactive dialogue between the State's authorities and the UN independent experts. Although the HRC will issue its Concluding Observations on 31 October, including recommendations to be implemented by Israel, it already clearly emerged from the review that Israel was not fully complying with the ICCPR, as expressed by the Committee's Chair, Sir Nigel Rodley, before declaring the session closed: "the Covenant is not a matter of auto-interpretation by every State."

During the discussion, the Committee questioned the Israeli delegation about the recent "Operation Protective Edge", the extra-territorial application of the ICCPR to the Occupied Palestinian Territories (OPTs: Gaza and the West Bank) and the blockade of Gaza. The Committee also questioned the State's excessive use of force, its home demolitions and settlement policies, its practice of administrative detention, and more generally, Israel's application of the right to liberty and security of the person as enshrined in ICCPR Article 9, which prohibits "arbitrary arrest and detention"; the Committee also tackled the question of the treatment of prisoners, including the use of torture, strictly prohibited by ICCPR Article 7; other questions raised related to the return of asylum seekers, provisions for the Bedouin people, juvenile justice, gender equality, access to water and natural resources, as well as Israel's more general application of the customary principles of equality and non-discrimination, also guaranteed by the Covenant.

The UN experts raised particular concern on the issue of torture. As the Israeli delegation sought to be reassuring by specifying that the use of "moderate physical pressure" during interrogations did not amount to torture or ill-treatment, the Committee pointed out to the large number of cases of torture submitted by NGOs, and to the numerous structural deficiencies conducive to the use of torture, including the lack of a definition for the crime of torture under Israeli penal law. The Committee recalled that the use of torture under the pretext of "self-defence" or "necessity" was not considered lawful under international human rights law, and strongly rejected claims that the security situation allowed for such practices.

Moreover, despite the Israeli delegation's assurance that fair trials and guarantees in the treatment of detainees were provided, the Committee expressed its preoccupation with the widespread practice of administrative detention, in particular the incommunicado detention of detainees for up to 15 days (a measure that can be renewed indefinitely), period during which time detainees are not permitted to appoint a lawyer of their choice, or the routine ban on detainees or their lawyers to access their file. The detention of 700 children by the Israeli Defence Forces (IDF) or the police in the past year was also raised as a matter of deep concern by the HRC, which noted that despite a few legislative amendments in response to international pressure – such as the raising of the age of majority from 16 to 18 – the changes remained poorly disseminated and implemented.

The Committee also addressed the matter of the excessive use of force by the Israeli forces, in particular by the IDF and during demonstrations, such as those in protest against Operation Protective Edge or during the annual Commemoration of the Palestinian Nakba. The 15 May 2014 shooting of two teenagers (who were not posing any security threat) outside Ramallah's Ofer prison during the last Nakba commemoration was used as an example to highlight the increasing use of live ammunition to repress demonstrations, which had recently led to a growing number of deaths and injuries of peaceful demonstrators.

Finally, the dialogue gave a lot of importance to the issue of the extraterritorial applicability of the Covenant – a principle supported by most States, excluding the United States and Israel – thus preventing the citizens of the Occupied Palestinian Territories to enjoy the civil and political rights enshrined in the Covenant. Israel also claimed that International Human Rights Law (IHRL) did not apply to situations of armed conflict, a claim that the Committee qualified of a "totally unique and unilateral decision of the State party". The fact that Israel does not accept the extraterritorial application of the Covenant, or its applicability in armed conflict "leaves millions of people over which Israel exercises effective control without the full enjoyment of their human rights," said the Committee's Rapporteur, Cornelius Flinterman.

In his concluding remarks, Sir Nigel Rodley, the Committee's Chairperson, noted that the State of Israel had avoided responding to many of the questions asked by the HRC, both in its written submission and during the interactive dialogue. For this reason the Committee strongly encouraged the Israeli delegation to provide all the requested missing information in its next report.

Before closing the session Sir Rodley added that "the Covenant is not a matter of auto-interpretation by every State." The Committee will issue its Concluding Observations on 31 October and issue recommendations to be implemented by Israel.

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