Date: 19 September 2013

 

Dear High Representative for Foreign Affairs and Security Policy, Chair of the Council’s United Nations Working Party, and Chair of the Council’s Working Party on Human Rights, 

 

The Palestinian Human Rights Organisations Council (PHROC) would like to express its deep regret at the European Union’s (EU) position on and non-participation in agenda item 7 of the United Nations (UN) Human Rights Council (the Council). Item 7, relating to “the human rights situation in Palestine and other occupied Arab territories,” has been a standing item on the Council’s agenda since its creation in 2006 and similarly appeared on the agenda of the former Human Rights Commission. This agenda item has provided a vital platform for highlighting the persistent violations of international human rights and humanitarian law committed in these territories over a 46-year period.  

 

Nevertheless, during the 22nd session of the Council in March 2013, the EU expressed its preference for addressing the human rights situation in Palestine under general agenda Item 4 on “Human rights situations that require the Council’s attention”. The EU also stated that it would “like to avoid a proliferation of reports and mechanisms under Item 7”.  In so doing, the EU effectively voiced its disapproval of a separate item addressing the Israeli occupation and gave its support for its removal. In the same vein, the EU decided not to participate in the General Debate under Item 7 during the 23rd session of the Council in June 2013. The EU’s position on Item 7 fails to consider the unique traits of the Israeli occupation, the UN’s particular responsibilities in securing  peace between the relevant parties given its integral role in Israel’s establishment, and the international community’s inaction in bringing Israel’s violations of international law to an end. 

 

Contrary to claims that Item 7 is the Council’s only country-specific agenda item and is therefore providing for unparalleled attention to violations committed by Israel, Item 7 was established to address the human rights situation in territories, Palestinian and Syrian, occupied by Israel in 1967. It is the unique nature of the occupation itself, the ensuing implications for international peace and security, and the inability of Palestinians to enjoy their inalianble rights that demand international scrutiny. Whereas occupation of a foreign territory was envisioned to be of a temporary nature, thus vesting sovereignty over the territory with the occupied population instead of with the Occupying Power, Israel has repeatedly demonstrated its intention to exercise sovereign rights over the territories it has occupied. In the Occupied Palestinian Territory (OPT) Israel has illegally annexed East Jerusalem and exercises full control over Area C, including through the construction and expansion of settlements,  while isolating the Gaza Strip from the rest of the OPT.  In so doing, Israel is violating the indisputable prohibition against annexation by the use of force and the right of the Palestinian people to self-determination, amounting to a serious breach of peremptory norms of international law and a violation of the prohibition on colonialism. 

 

Article 41 of the International Law Commission (ILC) Draft Articles, which reflects customary international law, affirms that all States are under an obligation to actively cooperate to bring any serious breach of peremptory norms of international law, such as the violation of the right to self-determination, to an end through lawful means. According to the same Draft Articles, this cooperation could be organised either in the framework of a competent international organisation or through means of non-institutionalised cooperation.  Although Article 41 does not indicate what measures States should take in order to bring serious breaches to an end, Item 7 provides exactly such a forum of cooperation. 

 

The inviolable right to self-determination is thus of special concern to the UN and its Member States, and deserves special attention by means of highlighting the matter through its bodies for as long as the violation is perpetrated. Indeed, the very purpose of the UN is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Despite the unquestionable value of reports, findings and recommendations by independent experts and committees addressing violations committed within the occupied territory, a forum such as Item 7, in which Member States cooperate to monitor the human rights situation within occupied Arab territories, could fulfil State responsibilities arising from such serious breaches of peremptory norms of international law.

 

The prolonged nature of Israel’s military occupation of the OPT has allowed for the institutionalisation of its discriminatory treatment of the Palestinian people as a matter of policy while access to effective legal remedy is systematically denied to the occupied population. The UN Fact-Finding Mission on Israeli Settlements in the OPT reaffirmed that the Israeli High Court of Justice has rendered the issue of settlements – recognised as illegal and an obstacle to international peace and security – non-justiciable. Recourse to international accountability mechanisms is therefore essential if justice is to be obtained. 

 

Despite the EU’s claim of the proliferation of reports and mechanisms under Item 7, the conflict has been marked by and indeed continues due to inaction. Notwithstanding the Council’s contribution to the documentation of violations committed in the occupied territories and their impact on the occupied people, the UN and the international community have failed to take action to put them to an end.  By promoting the removal of Item 7, the EU is guaranteeing that Israel’s violations will be unheard, unseen and unaddressed – dangerously contributing to the current nature of impunity for international law violations. 

 

UN General Assembly Resolution ES-1012 expressed its conviction that “the repeated violation by Israel, the Occupying Power, of international law and its failure to comply with relevant Security Council and General Assembly resolutions and the agreements reached between the parties undermine the Middle East peace process and constitute a threat to international peace and security.” Such a threat clearly demands consistent and dedicated monitoring by the international community until the situation is brought to a conclusion that guarantees the enjoyment of the rights of all people in the territories. 

In the context of persistent, systematic and gross violations of international law committed in an entrenched and prolonged occupation, the need for a body that is continuously and consistently mandated to oversee the situation is crucial. As the organ responsible for promoting universal

respect for the protection of human rights, the Council is one of the appropriate fora to ensure such attention.

 

The EU’s position and its disengagement from Item 7 are particularly alarming considering the impact of this position on Israel. Throughout the occupation, Israel has shown little regard to the United Nations human rights system, defying UN resolutions, failing to implement recommendations by treaty bodies and denying access and assistance to UN missions and special procedures. Israel’s latest attempt to undermine the UN human rights system culminated in its recent disengagement from the Council, including its subsequent mechanism, and Office of the High Commissioner of Human Rights. The EU’s position gives fruit to and emboldens Israel’s efforts to cripple Palestinians’ peaceful resort to justice through the UN human rights system. 

In 2012, the EU’s Strategic Framework and Action Plan on Human Rights and Democracy promised an EU “committed to a strong multilateral human rights system which can monitor impartially implementation of human rights and call all States to account” and underlined the “leading role of the UN Human Rights Council in addressing urgent cases of human rights violations and [contributing] vigorously to the effective functioning of the Council”. In the following 2013 Council Conclusions on the EU priorities in the UN human rights fora, the EU stated that it would “actively participate in the Human Rights Council and General Assembly sessions in 2013 through statements and interventions as well as by introducing thematic and country-specific initiatives targeting key human rights concerns and promoting accountability for human rights violations.” However, in blatant contradiction with these commitments the EU decided not to participate in the discussions under Item 7 of the Council’s 23rd session. The non-participation of the EU cannot be disconnected from its position on Item 7 or the fact that Israel had disengaged from the Council at that time. 

 

As a party deeply and historically invested in the Israeli-Palestinian conflict, devoted to Palestinian state-building, and in a special relationship with Israel, the EU’s participation in Item 7 is highly important. Agenda Item 7 is one of the primary multilateral platforms offered to the EU in which it can pursue its goals in the Middle East region. And more importantly, the EU’s active and conducive participation in Item 7 would ensure that it cohesively and comprehensively ensures that its Israeli partner abides by international law. 

 

In addition, as the organ responsible for promoting universal respect for the protection of all human rights, the Council has in an unprecedented manner ensured that it is accessible to and inclusive towards civil society organisations (CSOs). In many ways, the Council has welcomed CSOs to bring a human rights issue of grave concern to the attention of the United Nations and its organs, including the General Assembly.  The removal of Item 7 would diminish the supportive role played by CSOs in ensuring that all states abide by their legal obligations as well as mustering political responses and will when there is a state of non-compliance. 

 

Finally, as Palestinian human rights organisations, we stress that it is not the removal of Item 7 that would appropriately address the EU’s stated concerns regarding the proliferation of resolutions and reports.  Rather these concerns are appropriately addressed by ensuring the rigorous and efficient

utilisation of a forum aimed at protecting these occupied populations by holding Israel to account. As such, we ask the EU to actively and conductively participate in all agenda items of the Council, including Item 7.