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Letter to President Bush on Israel Loan Guarantees and Separation Barrier

September 30, 2003

Mr. President,

Human Rights Watch urges you to exercise U.S. influence to prevent the violations of human rights and humanitarian law caused by Israel's construction of the West Bank separation barrier.

Human Rights Watch takes no position on the territorial dispute that lies at the heart of the Israeli-Palestinian conflict, including any changes in land status that might accompany an eventual peace agreement. But we seek to ensure that the treatment of people living under Israeli occupation conforms to international legal standards. With this in mind, we have impartially and carefully monitored abuses of international human rights and humanitarian law by all parties in the Occupied Territories since 1989.

We recognize that the government of Israel has a right and a duty to protect its civilian population from attack. But it is obliged to do so within the bounds of international human rights and humanitarian law. The separation barrier's route and related access arrangements fail to meet these requirements.

The barrier's route repeatedly deviates from the Green Line, the post-1948 demarcation line between Israel and the West Bank, and is having a profound impact on the ability of the Palestinian residents to exercise fundamental human rights. Each mile that the barrier cuts into the West Bank separates local towns and villages from their lands, services, water, and livelihoods. The World Bank, the UN, and local and international human rights groups have documented in detail the barrier's harmful impact on local populations. Almost 150,000 people in thirty-one communities have been harmed by the first phase of the barrier. Other phases of the barrier will affect at least 150,000 more.

When Human Rights Watch visited the village of Qaffin in July 2003, it met farmers cut off from their land and unable to travel to apply for the permits needed to reach it. Despite assurances by the Israeli authorities in court documents that access to essential services would be allowed, no travel arrangements were in place for teachers, students, or medical personnel. When Human Rights Watch visited one of the two new barrier gates that enclosed the village, we found a line of fifteen vehicles that Israeli soldiers had held up for several hours. Also waiting in the same line were residents of neighboring Barta'a, who had been allowed to leave their village but were then prevented from passing through the gate to return home.

U.S. pressure on the Israeli government could result in clear, consistent access arrangements that would significantly reduce the barrier's harmful impact on daily life. But Israel has a long record of severe and arbitrary restrictions on freedom of movement, despite repeated commitments to the U.S. and UN to improve them.

These practices raise concerns as a matter of both international humanitarian and human rights law. As the UN Human Rights Committee the authoritative human rights body on the interpretation of the International Covenant on Civil and Political Rights (ICCPR) indicated last month, the applicability of international humanitarian law to the Occupied Territories does not preclude the application of international human rights law (Concluding observations of the Human Rights Committee: Israel (Aug. 21, 2003)).

The Israeli authorities have argued that the separation barrier is a vital element in Israel's defense against suicide bombings and other attacks against civilians in Israel. Although under human rights law freedom of movement can be restricted for security reasons, the restrictions must have a clear legal basis, and be limited to what is necessary and proportionate. As stated by the UN Human Rights Committee in its General Comment 27, any limits on freedom of movement cannot reverse the relation between right and restriction, between norm and exception. Yet the barrier embodies the premise of long-term and severe restrictions on the movement of vast numbers of people. It effectively confines tens of thousands of men, women, and children in walled enclaves, and sharply curtails movement for all but a handful of permit-holders. It will have a seriously deleterious effect on the right of access to a livelihood, education, and health and medical services.

The Israeli government has failed to respond publicly to charges that it could adopt less intrusive and less restrictive alternatives to address the security of civilians. In fact, the Israeli State Comptroller published a report in July 2002 strongly criticizing the inadequacy of checkpoint procedures and the lack of army deployment in border areas.

Even if a wall is the least intrusive method available to Israel, as planned the barrier is by definition intrusive because it is being constructed around illegal government sponsored settlements in the West Bank. These intrusions into the West Bank deprive Palestinians of land and as described above are cutting many of them off from services such as education and health care. The Israeli government cannot use security concerns for Israelis living in illegal settlements to justify further encroachments into occupied territory.

Without an urgent modification of current plans, the separation barrier will dramatically increase Palestinian impoverishment by reducing employment, agricultural production and market access, literacy rates, and access to maternal and infant health care. Under customary international law, Israel has a positive obligation to ensure the welfare of residents of the West Bank (Hague Regulations on Land Warfare, Article 43). It is also obliged to ensure the passage of emergency medical services, to respect the sick, to allow the passage of foodstuffs and medical goods, and to facilitate education (Fourth Geneva Convention, Articles 16, 20, 25, 50, 55 and 59). U.S. loan guarantees to Israel provide an obvious way of exercising U.S. influence to help remedy this situation. Human Rights Watch urges you to exercise the powers granted you under the Emergency Wartime Supplemental Appropriations Act of 2003 to deduct the costs of the West Bank separation barrier from the loan guarantees. We also urge you to use all means at your disposal to ensure that, if construction of the barrier continues, its path and operational arrangements fully conform to Israel's obligations as an occupying power and under international human rights and humanitarian law.

Yours sincerely,

Kenneth Roth
Executive Director

Israel / Occupied and Autonomous Palestinian Territories:
West Bank Barrier causes serious humanitarian and legal problems

Geneva (ICRC) - The ICRC is increasingly concerned about the humanitarian impact of the West Bank Barrier on many Palestinians living in occupied territory.

Where it deviates from the "Green Line" into occupied territory, the Barrier deprives thousands of Palestinian residents of adequate access to basic services such as water, health care and education, as well as sources of income such as agriculture and other forms of employment. The Palestinian communities situated between the "Green Line" and the Barrier are effectively cut off from the Palestinian society to which they belong. The construction of the West Bank Barrier continues to give rise to widespread appropriation of Palestinian property and extensive damage to or destruction of buildings and farmland.

The ICRC has repeatedly condemned deliberate attacks against Israeli civilians and stressed that all acts intended to spread terror among the civilian population are in clear violation of international humanitarian law (IHL). It recognizes Israel's right to take measures to ensure the security of its population. However, these measures must respect the relevant rules of IHL.

The ICRC's opinion is that the West Bank Barrier, in as far as its route deviates from the "Green Line" into occupied territory, is contrary to IHL. The problems affecting the Palestinian population in their daily lives clearly demonstrate that it runs counter to Israel's obligation under IHL to ensure the humane treatment and well being of the civilian population living under its occupation. The measures taken by the Israeli authorities linked to the construction of the Barrier in occupied territory go far beyond what is permissible for an occupying power under IHL. These findings are based on the ICRC's monitoring of the living conditions of the Palestinian population and on its analysis of the applicable IHL provisions. The Israeli authorities have been regularly informed about the ICRC's humanitarian and legal concerns.

The ICRC therefore calls upon Israel not to plan, construct or maintain this Barrier within occupied territory.

Press Release 04/12, February 18, 2004

The regime that is most friendly to Israel, the Bush administration, is treating the fence as an obstacle to any progress, pressuring Israel to make changes in the demarcation, and deducting a considerable sum from the loan guarantees as sanctions because of the money invested in erecting the fence on Palestinian land.

Shlomo Brom / Strategic Assessment, February 2004
Jaffee Center for Strategic Studies / TAU

Human Rights Watch
Israel/PA: Suicide Bombers Commit Crimes against Humanity

(Gaza, November 1, 2002) The people responsible for planning and carrying out suicide bombings that deliberately target civilians are guilty of crimes against humanity and should be brought to justice, Human Rights Watch said in a new report today.

The 170-page report is the first full-fledged examination of individual criminal responsibility for suicide bombings against civilians in Israel and the Israeli-occupied territories. The report, Erased in a Moment: Suicide Bombing Attacks against Israeli Civilians, also provides the most thorough study to date of the suicide bombing operations of Hamas, Islamic Jihad, the al-Aqsa Martyrs' Brigades and the Popular Front for the Liberation of Palestine (PFLP), the groups that have claimed responsibility for almost all recent suicide bombings.

"The people who carry out suicide bombings are not martyrs, they're war criminals, and so are the people who help to plan such attacks," said Kenneth Roth, executive director of Human Rights Watch. "The scale and systematic nature of these attacks sets them apart from other abuses committed in times of conflict. They clearly fall under the category of crimes against humanity."

Since January 2001, 52 Palestinian suicide bombings have killed some 250 civilians and injured 2,000 more.

Well-established principles of international law require that those in authority be held accountable when people under their control commit war crimes or crimes against humanity. Leaders who order such crimes, fail to take reasonable preventive action, or fail to punish the perpetrators are also responsible for such crimes.

The top leaders of Hamas and Islamic Jihad have openly espoused, encouraged, or endorsed suicide bombing attacks against Israeli civilians, and indicated that they have the capacity to stop them from happening. Those leaders, such as Hamas's Shaikh Ahmad Yassin and Khalid Mish`al and Islamic Jihad's Ramadan Shalah, should face criminal investigation for their roles in these crimes. The PFLP has publicly claimed responsibility for suicide bombings and car bombings against civilians. Its leaders appear to exercise control over their occurrence and so warrant criminal investigation. In the case of the al-Aqsa Martyrs' Brigades, control and responsibility appears to be centered at local levels, and those responsible should also face criminal investigation.

The Human Rights Watch report assesses the role and responsibility of the Palestinian Authority (PA) and President Yasir Arafat regarding suicide bombings against civilians. It concludes that the PA failed to take all available measures to deter such attacks or bring those responsible to justice, and by its failure contributed to an atmosphere of impunity for such crimes. "The greatest failure of President Arafat and the PA leadership is their unwillingness to deploy the criminal justice system to deter the suicide bombings, particularly in 2001, when the PA was most capable of doing so," Roth said.

Roth said the PA's failure to take effective preventive action or to punish perpetrators outside of its control does not meet the criteria of command responsibility under the current state of international law. "But Arafat and the PA do bear a high degree of political responsibility for the atrocities that occurred," Roth said.

The PA has argued that Israeli actions, such as the destruction of PA police and security installations, undermined its capacity to act. But even when that capacity was largely intact, the PA took no effective action to bring to justice those who incited, planned or assisted in carrying out bombings and other attacks on Israeli civilians. Instead, the PA pursued a policy whereby suspects, when they were detained, were not investigated or prosecuted, but typically were soon let out onto the street again.

The PA sought to explain these releases by citing the danger to detainees when Israeli forces bombed places of detention. But the PA has not explained why suspects were never investigated or charged, steps that do not depend on holding suspects in places of detention.

Human Rights Watch conducted in-depth interviews with PA officials and members of the armed groups, and closely reviewed PA internal documents made public by Israel. On the basis of what was publicly available to date, Human Rights Watch did not find evidence that Arafat or the PA planned, ordered or carried out suicide bombings or other attacks on Israeli civilians, or that they were able to exercise effective control over the actions of the perpetrator groups, including the al-Aqsa Martyrs' Brigades, an off-shoot of Arafat's Fatah movement.

Palestinian armed groups and their supporters have pointed to repeated Israeli attacks that have killed and injured Palestinian civilians as justification for the suicide bombings and other attacks on Israeli civilians. The report concludes that these arguments in no way justify reprisals that target or indiscriminately attack civilians.

"The prohibition against targeting civilians doesn't depend on the behavior of one's adversary," Roth said. "Even in the face of Israeli violations of international law, Palestinian armed groups must refrain from deliberate attacks against civilians."

The armed groups responsible for these attacks argue that Israel's continuing military occupation, and its vastly superior means of combat, make such attacks their only option. Again, these arguments find no justification whatsoever in international law, which is absolute and unconditional in its prohibition of intentional attacks against civilians.

"Armed conflicts often involve discrepancies of power between adversaries," said Roth. "Allowing those discrepancies to justify attacking civilians would create an immense loophole in the protections of international humanitarian law."

Finally, Palestinian armed groups also assert that their targets are not really civilians because "all Israelis are reservists" or because, they say, Israeli residents of settlements have forfeited their civilian status. The report points out that international humanitarian law is clear: reserve members of military forces are combatants only while on active duty, and otherwise benefit from protection as civilians. And while civilian Israeli settlements in the West Bank and Gaza are illegal under international humanitarian law, persons residing there are entitled to protection as civilians except when they are directly participating in hostilities.

Human Rights Watch called on all Palestinian armed groups to halt attacks on civilians immediately and unconditionally, and urged the PA to ensure that those in any way responsible for such attacks are brought to justice. Human Rights Watch also urged the PA to undertake a public campaign urging an end suicide bombings and other attacks against civilians and making clear that the PA does not consider as "martyrs" people who die carrying out attacks that deliberately or indiscriminately kill or cause great suffering among civilians.

No one is safe – the spiral of killings and destruction must stop
Amnesty International Press Release, September 29, 2003
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United Nations Office for the Coordination of Humanitarian Affairs / Occupied Palestinian Territory: Preliminary Analysis
OCHA, January 2004
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From the Press Statement of the Dutch parliamentarian-political delegation that visited Gaza and the West Bank between February 29 and March 3, 2004

Bert Bakker (MP D66, head of delegation), Adri Duivesteijn (MP PvdA-Labour Party), Cees Bremmer (Member of European Parliament, CDA-Christian Democrats) Marije Laffeber (international secretary, PvdA), Ans Zwerver (international secretary, Green Left)

[…] Among other things, the delegation studied the consequences of the building of the wall in occupied territory. The delegation has much appreciation for the work of Israeli and Palestinian human rights and peace organizations, who continue to work for a sustainable peace in the region. It is a task of the Dutch government, also in the framework of the Dutch presidency of the EU, to take initiatives to promote a way out of the present deadlock in the Middle East conflict.
[…] Breaking through the spiral of violence is an absolute condition for the realization of a new stability. Arrangements should emerge which enable a safe life in both areas. It should be a central element in the peace process that both (future) countries have the right to an equal, sustainable future in which peace and non violence are self-evident.
[…] During its visit, the delegation spoke with Israeli supporters and opponents of the building of Israeli settlements in occupied territory. The delegation concluded that the systematic continuation of creating 'facts on the ground', such as the building of settlements and the wall, is not only one of the most important elements that hinders the resumption of the peace process, but that it also removes the actual possibility of realizing a credible and viable Palestinian state.

The delegation also observes that due to the failure of enforcing elementary legal rules, a climate has emerged on both sides in which illegal violence prevails. The suicide attacks seriously undermine the security of Israeli citizens. These attacks also demand measures of the Israeli government. However, the delegation judges that many of the measures, which seem to be adopted for this purpose fall outside the boundaries of international humanitarian law. Clear examples are the building of a wall, continuous shootings of civilian targets (houses, schools), with all its consequences, and the collective punishments, such as the pending closure during the upcoming weekend. The adopted 'security measures' in fact constitute a one-sided 'system of control'. Its implementation can only be explained as a serious intrusion on the human rights of all Palestinians and on their human dignity. Also because of this, a humanitarian emergency situation has emerged in the occupied territories.

Investments in development projects and the continuing humanitarian support have not led to economic progress. The humanitarian and economic strangulation in which the Palestinian territories find themselves prevents any form of sustainable development. At this moment it is the international community which to a certain extent provides elementary services which according to the rules of international humanitarian law in fact fall under the responsibility of the occupying power.

In order to achieve a fundamental breakthrough the international community should take its responsibility. For us this means that the EU and the Netherlands should be directly and actively involved in the improvement of the human rights situation and the restoration of dialogue.

The delegation judges that:

An immediate cessation of all violence in both Israel and the Occupied Territories is necessary. However, to achieve this there should be a perspective for a real solution. To this purpose the greatest possible effort should be conducted at the political level.

The coming Dutch presidency of the EU offers here a unique opportunity. In view of our good relations with both Israel and the Palestinians, it can and should be expected from the Netherlands that it therefore already now takes initiatives. There is even more reason for doing so because as a result of the American elections peace initiatives threaten to come in a vacuum. The Dutch presidency should especially in this period consider it its task to intensify the efforts of the Quartet towards the implementation of the 'road map'.

The promotion of the work of human rights organizations and the dialogue from below should happen simultaneously with efforts within the Quartet. In addition to this, the Netherlands should be committed to work for the right observation of the cooperation treaties with Israel. The EU should not acquiesce in the violation of the EU – Israel Association treaty, such as with regard to the assignment of trade preferences to products from the Israeli settlements in occupied territory. At the same time the EU should take a strong position in support of the trade from the Palestinian territories towards Europe, as was intended by the EU-PLO Association treaty.

As long as the occupation continues, the EU has a special task to enforce respect for international humanitarian law, such as the Fourth Geneva Convention. Israel should fulfill its own responsibilities within this framework. The delegation is of the opinion that respect for international humanitarian law and care for the protection of civilians is an absolute condtion for the restoration of trust in a peace process that takes into account the legitimate rights of both parties. A part of this is the restoration of the freedom of movement in the occupied territories, as a result of which also the organization of free democratic elections for the Palestinian Authority will become possible.

It is especially the respect for international humanitarian law that justifies a direct cessation of the building activities in the occupied territories with regard to for instance the settlements and the wall, and suspension of other measures, which are a violation, such as the restrictions on the freedom of movement (checkpoints, closures, etc). The present situation justifies an international monitoring of the developments. If this cannot be realized in the short run, the Quartet, on the EU independently, should bring the situation in view, and should report about it towards the European parliament.

The delegation has observed with great concern that the chances for a just peace diminish day by day. The delegation therefore emphasizes the urgency to fully employ the possibilities of which the Dutch government disposes along the road of the European presidency. Of course the efforts of the Israelis and Palestinians come first, but a strategic effort of the EU can vitally contribute to reversing the situation and to avoid that the Palestinian and Israeli populations loose perspective towards a peaceful future.

The visit of the delegation was organized by United Civilian for Peace, a cooperation platform of the development and peace organizations Cordaid, ICCO, IKV, Kerkinactie, Novib and Pax Christi.

Security or Segregation? The Humanitarian Consequences of Israel’s Wall of Separation
Eva Balslev / Sune Segal, EAPPI, 2003
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The place of the fence/wall in international law
Amnesty International, February 19, 2004
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Israel's "separation barrier" in the occupied West Bank: Human Rights and International Humanitarian Law consequences
Human Right Watch / Briefing Paper, February 2004
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