IHL in the occupied Palestinian territory

Do Human Rights apply in the oPt?

International human rights law is applicable to the territory of a state but also extends to any territory which is under its effective jurisdiction, even if it is outside its borders. Effective jurisidction refers to the de facto level of control of one state over another territory or people.

International human rights law is applicable

Since the occupied Palestinian territory (oPt) has been under Israeli effective control over the past 40 years (1967-2007), international human right covenants apply to the oPt. The prolonged occupation has added another dimension to the legal responsibilities of Israel. Not only does Israel need to follow international humanitarian law (IHL), but it is also bound by international human rights that it has signed and ratified.

Although IHL protects core rules of human rights such as the rights to life, basic livelihood, health, education and due process of law, the application of human rights law expands Israel's obligations to include further rights as enclosed in the covenants.

To UN and Israel's ratification status

Many UN institutions, including the UN Commission on Human Rights, have adopted this approach.

On July 2004 the International Court of Justice (ICJ) in its Advisory Opinion on the Wall stated that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Covenant on the Right of the Child apply to the oPt.

To ICJ's website and the Advisory Opinion on the Wall including references to other international bodies

Effective control and effective jurisdiction

International human rights law apply to the oPt whenever the oPt is under "effective jurisdiction" of Israel. The law of occupation applies to the oPt whenever the oPt is under the "effective control" of Israel.

The two tests are similar although not necessarily identical. Effective jurisdiction includes control over a territory, people and can also be functional, such as control over the population registry, and water etc. It applies even when not in times of emergencies or armed conflicts. Effective control relates to military as well as administrative control and relates only to situations of occupation. Whenever there is effective control, effective jurisdiction reasonably follows.

Since Israel effectively controls - directly or indirectly - territories where the control has been transferred to the Palestinian Authority (PA) under the Oslo Agreements and the Gaza Disengagement Plan, it is seen as having effective jurisdiction over that area. Therefore, both international human rights law and international humanitarian law apply to the oPt.

As a consequence of the transfer of control over certain areas of the occupied Palestinian territory to the PA, relevant adaptations to the scope of Israel's responsbility under the human rights covenants need to be made.

The ICJ noted in its Advisory Opinion that regarding the International Covenant on Economic, Social and Cultural Rights, Israel is under an obligation not to raise any obstacles to the exercise of those rights by Palestinians in the oPt, including in the fields where competence has been transferred to Palestinian authorities.

To Wikipedia for more information about the Palestinian Authority

International Court of Justice

The International Court of Justice in its Advisory Opinion on the Wall considered the interrelation between the two bodies of law – international humanitarian law and human rights law. It concluded that by dealing with a situation of armed conflict, IHL is a specific law (lex specialis) compared to human rights law, which is applicable both in times of armed conflict and in times of peace.

It elaborated three possible inter-relations between the two bodies of law: situations in which only IHL applies; situations in which only human rights apply; and situations where the legality of the actions needs to be examined under both branches of law.

Therefore, each action needs to be examined under IHL, human rights law or both together depending on the circumstances. The Wall was analyzed by the ICJ under both laws.

Limitations of human rights

In times of emergency some human rights can be derogated from (temporarily departed from) according to the international covenants themselves. However, in any event, Israel is under the obligation to always respect core human rights articles such as the right to life and the prohibition on torture and slavery.

Revised
18/03/2011 Ingela Karlsson ingela.karlsson@diakonia.se