Peaceful protest, violent repression
Protest against the apartheid wall, Nilin, Palestine,22/10/2010. Photo by Active Stills
Courageous Voice, Fragile Freedoms pdf file
Israel’s arrest and detention of Palestinian human rights defenders against the Annexation Wall
Addameer report
December 2013
EXCERPT: Introduction and Chapter 1.
INTRODUCTION
This report will examine the increasing use of arrest and detention by the Israeli Occupying Forces (IOF) of Palestinian human rights activists taking part in protests and other peaceful acts of resistance against the illegal Annexation Wall and settlements in the West Bank since 2009.
Although the popular resistance that arose in response to the continuing construction of the Annexation Wall has been facing acts of repression and often violence from Israeli forces since regular demonstrations and international advocacy initiatives gained momentum in 2005, this report will show that in 2009 there was a shift in tactics by the IOF that should be viewed in the context of increasing recognition of the legitimacy of the actions by the Palestinian human rights activists. In 2009, demands by Palestinian civil society to end the regime of occupation through actions such as Boycott, Divestment and Sanctions (BDS) and to take part in regular demonstrations and other acts of civil disobedience against the Wall and settlements were gaining considerable ground both internationally and locally. These acts of resistance will be examined further in Section 1 of this report.
Also since 2009, a number of Palestinian activists have been recognized as human rights defenders by the United Nations and the European Union. The EU Guidelines on Human Rights Defenders, adopted in 2004, were built on the 1999 UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, most commonly referred to as the UN Declaration on Human Rights Defenders.
The Declaration defines human rights defenders as individuals who play an important role in furthering the cause of human rights through activities such as the documentation of violations, providing support and assistance to victims seeking remedies, combating cultures of impunity and mainstreaming human rights culture and information on an international and domestic level.
The EU Guidelines calls on EU member states to take appropriate action in relation to violations against human rights defenders, including those that occur in third party states. This includes raising individual cases of concern in political dialogues between the EU and third party states, and facilitating the use of UN Special Procedures aimed at holding to account those responsible for violations against human rights defenders.
Addameer’s findings in this report suggest that it is precisely because of this international recognition of, and support for, the actions of the Palestinian activists that Israel has responded with the increasing use of military regulations, which allows it to continue its campaign of repression behind the veneer of legal authorization. Since 2009, this has resulted in the arrest of at least four prominent human rights defenders on charges related to incitement, organizing illegal demonstrations, and other more excessive and unjustifiable charges aimed at criminalizing the legitimate activities of these activists. All four of these human rights defenders—two from the village of Bil’in and two from Nabi Saleh—have been convicted and sentenced to a year or more in prison as punishment for their acts of peaceful resistance. Other protest organizers have also been arrested but have either bee n released without charge or trial, had the charges against them eventually dropped, or have been acquitted of all charges. All these cases will be discussed more fully in the ensuing chapters.
June 01, 2014 Dozens of Palestinians marched on Saturday toward the separation wall near Tulkarem in what they called the “March of Return.” The demonstrators tried to knock a hole in the wall and join protesters on the other side. However, the Israeli army dispersed the protest with tear gas and detained several protesters.
Legal Framework
Israel frequently argues that human rights law does not apply to its actions in the occupied territory.(3) However, this position enjoys almost no support among non-Israeli jurists or among other states. Rather, the consensus is that international human rights law (IHRL) is applicable in conjunction with international humanitarian law (IHL), the laws that are applied in a situation of armed conflict or occupation.
Declarations, reports and resolutions by various UN bodies, including the Security Council and the General Assembly, have all affirmed that fundamental human rights, as accepted in international law and laid down in international instruments, can be invoked to both support and give full credence to instruments applicable to conditions of armed conflict. Equally, the International Court of Justice (ICJ) has repeatedly stated that an Occupying Power remains responsible for fulfilling its obligations stemming from human rights conventions in occupied territory. Finally, the International Committee of the Red Cross (ICRC) has confirmed that the two branches of law are complementary.
In this schema, human rights law applies in all situations, though on occasion it is overruled by concrete provisions of humanitarian law in situations of active combat. Accordingly, in the absence of any concrete provision in humanitarian law permitting infringement of the rights granted to civilians in accordance with human rights law, the latter must be observed.
If one considers the application of these two bodies of law in the case of Palestinians who protest against the Wall, settlements, and more generally the regime of occupation, human rights law—in particular the International Covenant on Civil and Political Rights—takes centre stage.
Freedom of assembly is enshrined in Article 21 of the International Covenant on Civil and Political Rights, which also permits the balancing of this liberty against other interests. The article states:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
Freedom of expression and freedom of assembly are not among absolute rights and therefore may be restricted under certain circumstances. Due to the importance of these freedoms, however, it may only be restricted (i.e. not derogated from) and only in exceptional cases. The Commentary on the UN Declaration on Human Rights Defenders also recognizes that the right to protest lies in the recognition of the set of rights and freedoms related to assembly, association, expression and opinion. Like these other rights, it can be restricted in the interests of national security and public order; however the Commentary recognizes that these restrictive measures—such as bans on demonstrations and arrest of protesters amounting to arbitrary detention – are often excessive and fail to comply with human rights law. It also notes that human rights defenders who attempt to challenge ‘security legislation’ through exercising their right to protest have faced harassment, intimidation, violence, arrest and arbitrary detention, and some have been killed.
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CHAPTER 1: THE WALL AND ITS AFTERMATH – A HISTORY OF PEACEFUL RESISTANCE AND VIOLENT REPRESSION
Palestinians in the occupied West Bank are geographically controlled and contained through a complex system of permits, checkpoints, security, checks and surveillance which exist to serve the infrastructure of the illegal Wall and settlements. Furthermore, the villages and communities near the Wall, which are predominantly located in “Area C”, as defined by the Oslo Agreements, are effectively under Israeli control and administration and therefore affected most by these restrictions. Palestinians are also subjected to different threats and conditions by the IOF who can, and do, arbitrarily arrest and detain them.
Ever since construction of the Wall began in 2002, Palestinians living in the affected villages, along with international and Israeli activists, have sought to challenge this clear affront to their basic rights and freedoms. Strategies of resistance have also been a clear response to the findings of the 2004 ICJ Advisory Opinion on the Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory. The Opinion both highlighted the illegality of building the Wall on Palestinian land inside the Green Line and the human rights violations against the Palestinian population that this entailed, and recommended that construction cease and parts of the Wall already built inside the Green Line be dismantled.
Israel’s rejection of the findings, and the insufficient response from UN member states to fulfill their own obligations in ensuring these recommendations were implemented, formed the basis of a long-term resistance strategy which recognized that it was in the hands of the Palestinians to attempt to dismantle the Wall, through both civil resistance and legal challenges.
Palestinians in Wall-affected villages have adopted three key strategies to oppose the construction of the Wall and Israeli land annexation:
first, Popular Committees against the Wall formed to mobilize an international solidarity movement through peaceful resistance and weekly demonstrations, often involving children and youths; second, they sought to challenge the path of the Wall by filing petitions to the Israeli High Court; and third, human rights activists increased international advocacy efforts by participating in international speaking tours, utilizing UN instruments and institutions to submit complaints and testimonies—for instance, through the UN special procedures and the UN Fact Finding Mission on the Gaza Conflict and the International Fact Finding Mission on Israeli Settlements – and advocating the Boycott, Sanctions and Divestment Movement as one of the possible ways to achieve accountability.
Protest against the annexation wall by the Bil’in popular resistance committee.
These strategies all demonstrate an important phase in Palestinian resistance, aimed at realizing the right to self-determination through peaceful and legal means, which has had the effect of increased repressive measures taken by the Israeli forces to further curtail this and other rights, as will be discussed further in the report. The following section will present a brief overview of these strategies.
1.1: METHODS OF PEACEFUL RESISTANCE
1.1.1 Popular Resistance: Forming a Peaceful Social Movement against the Wall
The first demonstrations and protests against the Wall were spontaneous and started in 2002 from the moment Israel began its construction works in the northern West Bank. Since then, and in the wake of the 2004 ICJ Advisory Opinion, local residents have formed Popular Committees in villages across the West Bank, including Bil’in, Ni’lin, Al-Ma’sara, Al-Walaja and Nabi Saleh, and have taken on a campaign of mass popular resistance, engaging in weekly, and even daily, demonstrations protesting against the Wall and the broader illegal regime of settlement expansion. Through such resistance, Palestinians are defending their human rights, including the rights to self-determination, protection against invasion of privacy in the home and family, the right to work and to an adequate standard of living, heath and education, as well as the rights to freedom of movement, association, assembly and expression. As a strategy, Popular Committees have continuously adhered to principles of peaceful resistance, their members repeatedly expressing these principles during demonstrations and also at court hearings.
June 2014: At dawn, 200 border police arrested 11 Palestinians in Abu Dis and Eizariya on suspicion of throwing Molotov cocktails at the separation barrier.
Mondoweiss
Although protests and demonstrations sometimes involve stone throwing by Palestinian youths at the Wall and other targets, the majority of the violence stemming from the demonstrations comes from increasingly harmful tactics utilized by Israeli forces against unarmed, peaceful protestors, as will be discussed further in Section 2. Indeed, the UN Special Rapporteur on the situation of Human Rights Defenders has recognized in the commentary to the UN Declaration on Human Rights Defenders that although the State has an obligation to act accordingly to situations of violence that arise from protests and other forms of assembly, “it is frequently the excessive and disproportionate use of force by the police or army during peaceful demonstrations that has provoked violent reactions from an otherwise peaceful assembly, these reactions are in turn answered by more violence from the police or army and again led to deaths and severe injuries”.
1.1.2 Challenging the Construction through Legal Means Since the beginning of the construction of the Annexation Wall, neither the Palestinian Authority nor other Palestinian institutions have been able to develop a clear, joint strategy to challenge the legality of the Wall and its associated regime in Israeli courts. However, since 2003 dozens of petitions were submitted to the Israeli High Court of Justice against the Wall(14). These petitions were submitted either by human rights organizations such as, most notably, the Association for Civil Rights in Israel (ACRI) and the Jerusalem Legal Aid and Human Rights Center (JLAC), or local village councils themselves. While the initial petitions were filed by Palestinian residents against various sections of the Wall, the petitioners, supported by human rights organizations, subsequently started to challenge the legality of the entire project.
Of the total number of petitions, exceeding 64, only three petitions were ruled in favor of the petitioners. The first such case concerned Beit Surik, a West Bank village located 12 km northwest of Jerusalem, where the local village council submitted a petition to the Israeli High Court against the government of Israel and the Israeli military commander in the West Bank. On 30 June 2004, in a move apparently aimed at pre-empting the ICJ Advisory Opinion that was released on 9 July, the High Court held in its decision Beit Surik Village Council v. the Government of Israel that the specific route of the Wall causes excessive harm to its residents, violates the principle of proportionality and is therefore illegal according to both international and Israeli standards. It further instructed the government of Israel to propose an alternative route for the Wall. However, the ruling failed to determine the illegality of the Wall itself. Instead, the judges claimed that due to its temporary nature the Wall is legal even if built inside the Green Line and its construction can be justified by security considerations and the principle of “military necessity”.
Subsequently, a new route around Beit Surik and the surrounding villages was proposed, which the Cabinet of Ministers approved in February 2005. However, most of the amended route continued to run through the West Bank as opposed to following the Green Line.
In 2004, the Association for Civil Rights in Israel submitted a petition to the Israeli High Court of Justice on behalf of six residents from two of the so-called Alfei Menashe enclaves, located to the south of the West Bank city of Qalqilya. The petitioners relied upon the arguments included in the ICJ Ruling on the Wall and the Beit Surik Ruling claiming that the path of the Wall is both illegal and does not satisfy the proportionality principle, causing great harm to Palestinian residents of the enclave. In its ruling, dated 15 September 2005, the Israeli High Court ordered the state to “reconsider, within a reasonable timeframe, alternatives to the route of the Barrier at Alfei Menashe” that would not encircle the villages. However, the ruling failed again to determine the illegality of the Wall itself.
The third ruling related to the case of Bil’in village in Ramallah district and a 1.7 km section of the Wall, built on the village’s land. In its ruling of 4 September 2007, the Israeli High Court of Justice decided that the Wall built around Bil’in had to not only be re-routed, but to have some of its sections dismantled. The judges remained sceptical of the security arguments in this specific case and found that the route of the Wall had been designed in order to allow for the expansion of the Mod’in Illit settlement. They further held that, “In light of the provisional nature of the fence as a security measure, it is improper to plan the route according to considerations related to invalid building plans or to plans that are not expected to be implemented in the near future”.
Most importantly, the judges ordered the state to examine an alternative route, which would cause less harm to Bil’in residents and would not be designed according to future development plans of “additional neighborhoods(17)”. In June 2011, almost four years on from the High Court ruling, the route of the Wall was moved westwards by the Israeli army, returning to the village 745 dunams of farmland that had been confiscated by the original route of the Wall but still isolating 1,300 dunams of village land on the other side of the Wall, within the borders of Mod’in Illit settlement.
A judgment by the Israeli High Court following a petition by the local village council concerned the re-commencement of construction of the Wall around the village of Al-Walaja, which straddles the Green Line and is located both within Bethlehem Governorate and the boundaries of Jerusalem. In August 2011, the Israeli High Court rejected all arguments put forward by the village council, including its claims that the route of the Wall would cut villagers off from hundreds of dunams of farmland, a cemetery and a water source.
The High Court cited security considerations as a major factor in its decision. The decision followed the installation of two gates along the route of the Wall by the Israeli army, through which the villagers would be allowed to pass to access their land, and claims by Israel that the Wall would be re-routed northwards such that villagers would have access to the nearby spring. By the end of 2010, before the Court’s deliberations had been completed, a patrol road and a nine-meter-high concrete wall had already been erected in parts of the village. Upon its completion, the residents of Al-Walaja will be completely surrounded by the Wall and only able to access surrounding areas through a series of tunnels. The villagers continue to protest the Wall’s construction, its confiscation of Palestinian land and the impact it will have on sustaining their crops, given the well-known restricted permit system that operates at the gates through the Wall. As with the continuing protests in other villages affected by the Wall, these actions regularly lead to arrests, beatings and other violent responses by the Israeli forces.
Another petition currently underway concerns the village of Nabi Saleh, 20 km from Ramallah, which is under threat from the expansion of the nearby settlement of Halamish. Since 2008, settlers have been trying to appropriate the Al-Qaws spring and start renovating the area around it, causing damage to trees and other property of the Palestinian residents of the village. In February 2010 the Al-Qaws spring was officially declared an archaeological site by the Israeli authorities and Palestinians were denied access to it. On 28 July 2011, Israeli human rights organization Yesh Din filed a petition to the High Court of Justice on behalf of landowners and representatives from Nabi Saleh and another village affected by the confiscation of the spring, Deir Nidham, demanding that the structures and the facilities built on the site be demolished. According to Yesh Din in September 2012, ‘the court issued an interim order forbidding the settlement of Halamish to perform any construction around the spring’, although since then construction has continued.
1.1.3 International Advocacy
In recent years the main thrust of international advocacy undertaken by the popular resistance and village committees has been promoting the Boycott, Divestment and Sanctions (BDS) Campaign. This followed an international call made by Palestinian civil society groups on 9 July 2005, one year after the ICJ Advisory Opinion, to resist the occupation by boycotting and divesting from Israel. The call was endorsed by Palestinian political parties, trade unions and non-governmental organizations, many of which are represented in the popular committees in the areas affected by the Wall. As with initiatives taken by the popular committees to challenge the construction of the Wall through civil action and legal means, advocates of the BDS call have been subjected to arrest and movement restrictions, particularly at border crossings when traveling abroad to mobilize the international community behind the campaign.
Between 2008 and 2009, BDS actions by Palestinian activists as well as solidarity groups in Europe were followed by a number of divestments from companies implicated in Israel’s settlement construction and annexation polices. This included the Norwegian Pension Fund’s divestment from the Israeli security and defense firm Elbit Systems in September 2009, and a series of decisions in 2008/9 by several councils and transport companies in Europe and Australia to exclude from their contracts Veolia, a large French multinational company involved in constructing the light railway system and bus routes connecting illegal Israeli settlements to Jerusalem and parts of Israel.
At the same time, the village council of Bil’in had launched its own international legal proceedings against two Canadian companies, Green Park International and Green Mount International. The case was heard before the Supreme Court of Quebec on 22, 23 and 25 June 2009. These companies were involved in the construction, marketing and selling of residential units in the illegal Jewish-Israeli settlement of Mod’in Illit, on Bil’in’s land. The claim, filed by Mark Arnold, Bil’in’s lawyer in Canada, sought to demonstrate that “in so doing, the defendants are aiding, abetting, assisting and conspiring with Israel, the Occupying Power in the West Bank, in carrying out an illegal act.” The main justification given behind this complaint was the insufficient legal redress provided to Palestinians who petition the Israeli courts regarding Israel’s land confiscation policies. On 18 September 2009, the Quebec Superior Court Judge dismissed the civil action suit, and in August 2010 the Quebec Court of Appeal also dismissed the case on the grounds that “the authorities of another country [Israel] are in a better position to judge the claim.” This case is worth noting as it highlights the multi-level nature of Bil’in’s peaceful resistance and helps to understand why the Israeli authorities are so keen to stifle it.
Furthermore, the Bil’in resistance movement has gained important international notoriety and is regularly praised for its peaceful actions. A visit by the Elders(25) to Bil’in in August 2009 gave testimony to this, as have numbers of diplomatic and journalist delegations that made the trip to meet the village and its Popular Committee members. The oppression Bil’in faces is therefore more visible because of its successful media campaign, though other villages that have thus far garnered less international attention have used their own original and peaceful tactics.
In this same period, a number of Palestinian activists began to engage with the UN system as a venue for obtaining international accountability through cooperating with the UN Fact Finding Mission on the Gaza Conflict concerning Israel’s violent response to demonstrations against the occupation, at that time specifically related to the protests against the 2008/2009 Israeli assault on Gaza that were taking place throughout the West Bank. Mohammed Srour from the Popular Resistance in Bil’in testified before the Mission in Geneva. In its final report to the Human Rights Council, the UN Fact Finding Mission on the Gaza Conflict noted that the UN Declaration on Human Rights Defenders is relevant in relation to Palestinian demonstrators who protested Israel’s assault on the Gaza Strip at weekly demonstrations, which usually take place in the villages most affected by the Annexation Wall, such as Ni’lin, Bil’in, Al-Ma’sara and Jayyus. The Mission noted in paragraph 1421 that Article 5 of the Declaration, “affirms the right of everyone ‘to meet or assemble peacefully’ for the purpose of promoting and protecting human rights and fundamental freedoms” is particularly relevant.
Conclusion
Recent years have witnessed a change in strategy among Palestinians seeking to resist Israel’s illegal policies and practices. The continuing construction of the Annexation Wall—in defiance of the International Court of Justice Advisory Opinion and international law—has forced Palestinians to identify new avenues to challenge the new ‘facts on the ground’ being created by Israel. At the same time, a sea change in public opinion towards Israel, especially in light of its military assaults on Gaza, has led to a growing international movement of human rights actors and activists who support the actions of the Palestinian popular resistance. Its successes can be witnessed not only in the achievements of the BDS campaign, but also in the growing number of international activists participating in the weekly demonstrations, and in recognition of some of the popular resistance activists as human rights defenders by international bodies.
However, Israel’s response has been to escalate its campaign of arrest and detention of human rights defenders, along with other repressive and violent measures. It is often the very same Palestinian activists who take part in these new resistance strategies who become targets of these actions, as will be seen in the following section.