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The history of the Israeli-Palestinian conflict is replete with serious human rights violations—including arbitrary arrest, torture, and unfair trials—that the parties have tried to justify by invoking security concerns. Instead of creating strong mechanisms to prevent such violations, many sections of the Wye River Memorandum can be read as encouraging them.
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Related Material HRW Press Releases: Security Pact May Encourage Human Rights Violations October 22, 1998
Palestinian Authority Should Halt Executions, Review Unfair Trials
Israel Uses Torture, Detention, and Hostage-taking to Violate Civil and Political Rights
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What the Memorandum Says:
1. Human Rights
The history of the Israeli-Palestinian conflict is replete with serious human rights violations—including arbitrary arrest, torture, and unfair trials—that the parties have tried to justify by invoking security concerns. Instead of creating strong mechanisms to prevent such violations, many sections of the Wye River Memorandum can be read as encouraging them. Much of the document's language relating to security is broad and categorical, as in the requirement that the Palestinian side pursue a policy of "zero tolerance for terror and violence" and that both sides "take all measures necessary in order to prevent acts of terrorism, crime and hostilities." Without a countervailing emphasis on human rights, such language suggests that any and all measures, whether or not they accord with the parties' human rights obligations and the fundamental principles they have pledged to respect, are justified in the fight to eliminate armed attacks against civilians. Those who drafted and signed this new agreement therefore have a responsibility to make clear that meeting legitimate security needs should not be a rationale for violating human rights.
Article II (C) (4) of the memorandum contains the only explicit reference to human rights and the rule of law:
Pursuant to Article XI (1) of Annex I of the [1995 Israeli-Palestinian] Interim Agreement, and without derogating from the above, the Palestinian Police will exercise powers and responsibilities to implement this Memorandum with due regard to internationally accepted norms of human rights and the rule of law, and will be guided by the need to protect the public, respect human dignity, and avoid harassment.
This language is ambiguous and incomplete. First, it applies only to the Palestinian Police, omitting other Palestinian agencies and all Israeli agencies. In addition, the article's inclusion of the phrase "without derogating from the above"—that is, without derogating from the security obligations described in the previous sections of the document—seems to imply that compliance with human rights standards is secondary to security concerns. Any such blanket subordination of human rights to security conflicts with international law norms that clearly indicate the limited circumstances in which departures from human rights standards are allowable. For example, even during "times of public emergency which threaten the life of the nation," Article 4 of the International Covenant of Civil and Political Rights (ICCPR) allows only very limited restrictions on rights, and only "to the extent strictly required by the exigencies of the situation." The ICCPR also expressly prohibits any departure, under any circumstances, from certain fundamental guarantees such as the prohibition on torture. Israel and the United States have both ratified the ICCPR, and the Palestinian authorities have indicated their willingness to comply with the treaty while awaiting statehood.
2. Torture and Unfair Trials
Article II (C) (3) sets a twelve-week deadline for responses to requests for "arrest and transfer of suspects and defendants pursuant to Article II (7) of Annex IV" of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip (the Interim Agreement). This clause applies primarily to transfer requests made by Israel because the Interim Agreement only allows the transfer of non-Israelis to Palestinian custody. Although press reports have indicated that Israel dropped its request for the transfer of some Palestinian suspects in exchange for the Palestinian Authority agreeing to bring them to trial, this is not reflected in the language of the memorandum. Since the Interim Agreement requires the parties to "effect the arrest and transfer" upon receipt of a request, Article II (C) (3) increases the likelihood that Palestinian suspects will be subject to arbitrary arrest, torture, and summary trials.
Despite the presence of a human rights clause in Article XI (1) of Annex I of the Interim Agreement, Human Rights Watch and other human rights organizations have extensive documentation of the use of torture during interrogation and of unfair trials in both Israel and under the Palestinian Authority since the signing of that agreement. In May and July the treaty monitoring bodies of the Convention against Torture and the International Covenant on Civil and Political Rights found Israel to violate those treaties' prohibition on torture and cruel, inhuman and degrading treatment or punishment, based on its use of torture during interrogation and its use of administrative detention and detention by military order, practices which lacked provisions for effective judicial review. Human Rights Watch believes that Article II (C) (3) may lead to the transfer of detainees to a state where they risk torture, as well as possibly encouraging the Palestinian Authority to engage in arbitrary arrests, arbitrary detentions, and unfair trials.
3. Freedom of Expression
Article II (A) (3) states that "the Palestinian side will issue a decree prohibiting all forms of incitement to violence or terror, and establishing mechanisms for acting systematically against all expressions or threats of violence or terror." It also creates an U.S.-Palestinian-Israeli committee, staffed by media specialists, law enforcement representatives, educational specialists, and current or former elected officials. This committee is to "monitor cases of possible incitement to violence or terror and make recommendations and reports on how to prevent such incitement."
The International Covenant on Civil and Political Rights places strict limits on the range of permissible interference with the rights it guarantees. While Article 20 of the ICCPR requires states to prohibit incitement to violence, such prohibitions must be narrowly tailored in light of the fundamental right to free expression protected in Article 19, which specifies that restrictions on the right to freedom of expression are only allowed in pursuit of a limited set of goals, and only when such restrictions are necessary for ensuring their achievement. The United Nations Human Rights Committee, which monitors the ICCPR, has further emphasized that such restrictions "may not put in jeopardy the right itself."
Human Rights Watch and other human rights organizations have documented many Palestinian Authority violations of press freedom and freedom of expression, including the closure of media outlets and the arrest of journalists and writers who have published stories critical of the Palestinian Authority. We are concerned that the vague language of "prohibiting all forms of incitement" may become an excuse for further violations of the right to legitimate political expression. Already freedom of expression violations have increased sharply since the signing of the Wye River Memorandum.
4. The Role of the CIA
The Wye River Memorandum sets up U.S.-Palestinian and U.S.-Palestinian-Israeli committees to monitor implementation, including committees that "monitor cases of possible incitement" and "review and evaluate information pertinent to the decisions on prosecution, punishment or other legal measures which affect the status of individuals suspected of abetting or perpetrating acts of violence and terror." Officials of the Central Intelligence Agency (CIA) will represent the U.S. on these committees. The CIA has in the past frequently tolerated gross human rights violations by security forces and groups it monitored or aided, as in Honduras, and has itself been implicated in human rights violations, most recently in Haiti.
Human Rights Watch strongly recommends that the mandate of committees set up to monitor implementation of the memorandum includes monitoring of human rights violations by all sides. U.S. representation should not be limited to CIA personnel, and all U.S. representatives should have training in monitoring human rights violations. U.S. committee members should be required to report all human rights violations to the Assistant Secretary of State for Democracy, Human Rights and Labor, and this information should be made public and included in the Department of State's annual country reports on human rights.
Recommendations for Implementation:
Israeli and Palestinian security forces have a responsibility to protect the public, and human rights standards should not be used to excuse negligence or lack of political will in discharging this responsibility. However, the main danger is not excessive concern for human rights and rule of law by security forces and political leaders, but the opposite: a sense of dispensation from human rights norms in implementing "all measures necessary" to prevent acts of violence.
Human Rights Watch calls upon all parties named in the Wye River Memorandum to:
Human Rights Watch calls on the United States to:
For more information:
Clarisa Bencomo 212/216-1232 (New York)
Joe Stork 202/371-6592 ext.118 (Washington D.C.)
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