April 20, 2009

Legal Standards

The abuses documented in this report, including extrajudicial executions, torture and other cruel and inhuman treatment, and arbitrary detention, are prohibited under international human rights law and international humanitarian law (the laws of war), which were applicable in Gaza during the Israeli military offensive. The human rights abuses documented in this report also violate the Palestinian Basic Law, which states in article 10 that “basic human rights and freedoms shall be binding and respected.”[39]

Customary international human rights law, such as found in the Universal Declaration of Human Rights,[40] and treaty law, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prohibit extra-judicial executions and other deliberate killings, and torture and cruel or inhuman treatment, among other abuses described in this report. These prohibitions apply at all times, even during recognized states of emergency.[41] Likewise, the Palestinian Penal Procedures Law, which elaborates on the conduct of arrests and treatment of persons in custody by the security forces, allows some restrictions of fundamental rights during an officially declared state of emergency, but only “to the level that is necessary to achieve the objective stated in the decree that announces the state of emergency.”[42]

The prohibition of torture is one of the most fundamental in international human rights law. As set out in the Convention against Torture, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person… by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The UN Committee Against Torture, which reviews the compliance of states with the convention, has made it clear that “those exercising superior authority -- including public officials -- cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.”[43] No exceptional circumstances whatsoever can justify torture.  States are responsible for having effective systems in place for addressing victims’ complaints, and prosecuting those who torture, those who order them to, and those in positions of authority who fail to prevent or punish torture.

The laws of war also prohibit unlawful killings and ill-treatment of persons by a party to the conflict. Article 3 common to the four Geneva Conventions of 1949, applicable to states and non-state armed groups, prohibits, “at any time and in any place whatsoever” with respect to civilians and combatants no longer taking part in the hostilities, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”[44]

International human rights law also prohibits the arbitrary deprivation of liberty.  Article 9 of the ICCPR defines as arbitrary and prohibits detention “except on such grounds and in accordance with such procedure as are established by law,” grants detainees the right to judicial review of their detention and compensation if it is found to be unlawful.[45] Even during recognized states of emergency, fundamental guarantees, such as the right to be brought before a judicial authority, still apply.[46] The laws of war also prohibit the arbitrary deprivation of liberty.[47] Security forces may limit the movement of individuals during military operations for specific reasons, however, they may not prohibit persons from leaving their homes solely on the grounds of their affiliation with a political movement.

Hamas, as a non-state armed group, is bound by the laws of war. As a de facto governing authority, Hamas cannot be party to international human rights treaties, but it has publicly indicated it would respect international standards. In a speech in Gaza on June 21, 2006, Prime Minister Ismail Haniya said Hamas was determined “to promote the rule of law, the respect for the judiciary, the separation of powers, the respect for human rights, the equality among citizens; to fight all forms of discrimination; to protect public liberties, including the freedom of the press and opinion.”[48] In the program of the National Unity Government, presented on March 17, 2007, Hamas stated its “respect for international law and international humanitarian law insofar as they conform with our character, customs and original traditions.”[49]

The Gaza authorities consider themselves to be the lawful government of the Palestinian Authority and therefore should be bound by the PA’s repeated commitments to respect international human rights law.[50] In any event, Hamas de facto governs a specific territory and therefore should govern in accordance with international human rights standards.[51]

[39]The Palestinian Basic Law was intended as a temporary constitution until the establishment of an independent Palestinian state with a permanent constitution. The Palestinian Legislative Council passed the Basic Law in 1997 and President Yasser Arafat ratified it in 2002. It was amended in 2003 to introduce a prime minister and in 2005 it to conform to the new Election Law. (See http://www.palestinianbasiclaw.org/2002-basic-law, accessed June 9, 2008).

[40]Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

[41]ICCPR, art. 4 (non-derogable rights and states of emergency).

[42]Article 102.

[43]UN Committee Against Torture, General Comment no 2, CAT/C/GC/2, January 24, 2008.

[44]Common Article 3 to the Geneva Conventions of 1949.

[45] ICCPR, Article 9.

[46]See ICCPR, article 9 (prohibition on arbitrary detention) and article 4 (states of emergency); see also Human Rights Committee,  General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003), para. 11 (the ICCPR provisions on states of emergency may not be invokes “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.”).

[47]See International Committee of the Red Cross, “Customary International Humanitarian Law” (Cambridge: Cambridge University Press, 2005), rule 99.

[48]Speech of Prime Minister Ismail Haniya at the conference “The New Government and the Agenda for Human Rights,” Gaza City, June 21, 2006 (as cited by “Human Rights Situation in Palestine and other Occupied Arab Territories,” Human Rights Council, A/HRC/8/17, June 6, 2008,http://www2.ohchr.org/english/bodies/hrcouncil/docs/8session/A.HRC.8.17.doc (accessed June 16, 2008).)

[49] “National Unity Government Program,” presented by Prime Minister Haniya to the Palestinian Legislative Council, March 17, 2007 (as cited by “Human Rights Situation in Palestine and other Occupied Arab Territories,” Human Rights Council).

[50] According to article 10 of the Basic Law, the Palestinian National Authority “shall work without delay to become a party to regional and international declarations and covenants that protect human rights.” The PA has explicit legal obligations from the Oslo Accords, an umbrella term for the series of agreements negotiated between Israel and the Palestine Liberation Organization from 1993 to 1996. Annex I of the Protocol Concerning Redeployment of the Interim Agreement of September 28, 1995, states that the Palestinian police will exercise powers and responsibilities to implement the memorandum “with due regard to internationally accepted norms of human rights and the rule of law.” Article XIV of the 1994 agreement on the Gaza Strip and the Jericho Area stipulates that both Palestine and Israel should respect human rights. The Government of Israel and the Palestine Liberation Organization, “The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,” Annex I, article XI (1), Washington D.C., September 28, 1995. See “The “Roadmap”: Repeating Oslo’s Human Rights Mistakes,” Human Rights Watch, May 6, 2003, http://www.hrw.org/backgrounder/mena/israelpa050603.htm, and “An Analysis of the Wye River Memorandum,” Human Rights Watch, November 1998, http://www.hrw.org/press98/nov/israel1102.htm.

[51] According to the joint report on Lebanon and Israel issued by four UN Special Rapporteurs, “It is especially appropriate and feasible to call for an armed group to respect human rights norms when it exercises significant control over territory and population and has an identifiable political structure.” (“Mission to Lebanon and Israel,” Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-General on human rights of internally displaced persons, Walter Kälin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari,UN doc A/HRC/2/7, para. 19.)