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Separate and Unequal

May 10, 2014 at 12:15 pm

Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories

This report consists of a series of case studies that compare Israel’s different treatment of Jewish settlements to nearby Palestinian communities throughout the West Bank, including East Jerusalem. It describes the two-tier system of laws, rules, and services that Israel operates for the two populations in areas in the West Bank under its exclusive control, which provide preferential services, development, and benefits for Jewish settlers while imposing harsh conditions on Palestinians. The report highlights Israeli practices the only discernable purposes of which appear to be promoting life in the settlements while in many instances stifling growth in Palestinian communities and even forcibly displacing Palestinian residents.

Such different treatment, on the basis of race, ethnicity, and national origin and not narrowly tailored to meet security or other justifiable goals, violates the fundamental prohibition against discrimination under human rights law.

It is widely acknowledged that Israel’s settlements in the West Bank, including East Jerusalem, violate international humanitarian law, which prohibits the occupying power from transferring its civilian population into the territories it occupies; Israel appears to be the only country to contest that its settlements are illegal. Human Rights Watch continues to agree with the nearly universal position that Israel should cease its violation of international
humanitarian law by removing its citizens from the West Bank. This report focuses on the less-discussed discriminatory aspect of Israeli settlement policies, and analyzes serious and ongoing violations of other rights in that context.

The case studies in this report show that discriminatory Israeli policies control many aspects of the day-to-day life of Palestinians who live in areas under exclusive Israeli control and that those policies often have no conceivable security justification. For example, Jubbet al-Dhib is a 160-person Palestinian village to the southeast of Bethlehem that is often accessible only by foot because its only connection to a paved road is a rough, 1.5 kilometer-long dirt track.

Children from Jubbet al-Dhib must walk to schools in other villages several kilometers away because their own village has no school. Jubbet al-Dhib lacks electricity despite numerous requests to be connected to the Israeli electric grid, which Israeli authorities have rejected; Israeli authorities also rejected an internationally donor-funded project that would have provided the village with solar-powered streetlights. Any meat or milk in the village must be eaten the same day due to lack of refrigeration; residents often resort to eating preserved foods instead. Villagers depend for light on candles, kerosene lanterns, and, when they can afford to fill it with gasoline, a small generator.

Approximately 350 meters away is the Jewish community of Sde Bar. It has a paved access road for its population of around 50 people and is connected to Jerusalem by a new, multimillion dollar highway—the “Lieberman Road”—which bypasses Palestinian cities, towns, and villages like Jubbet al-Dhib. Sde Bar operates a high school, but Jubbet al-Dhib students are ineligible to attend; for Palestinians, settlements are closed military areas that may be entered only with special military permits. Residents of Sde Bar have the amenities common to any Israeli town, such as refrigerators and electric lights, which Jubbet al-Dhib villagers can see from their homes at night.

Both Jubbet al-Dhib and Sde Bar fall within “Area C” – land that was designated under the 1995 Oslo interim peace agreement to fall under Israeli civil and military control. But while Israel grants Sde Bar residents access to roads, electricity, and funds for housing development, it deprives residents of Jubbet al-Dhib of similar amenities. Since Sde Bar’s founding in 1997, Israel has invested millions of dollars in nearby Jewish settlements like Tekoa and Nokdim to build homes, schools, community centers, health clinics, and swimming pools. The same is not true for Jubbet al-Dhib, which dates to 1929. Development and infrastructure there are at a standstill, strictly prohibited by Israeli authorities who prevent villagers from building new houses or expanding those they already have.1

Israel has human rights obligations towards all persons under its control, including those in territory it occupies, as has been stated by the International Court of Justice and other international bodies. Israel denies that its human rights obligations apply to Palestinians in the West Bank, except for East Jerusalem, which it considers part of Israel. It argues against the applicability of human rights law based on an interpretation that restricts its applicability to the territory of a state and not to occupied territories, and on the argument that the law of occupation applies to the West Bank to the exclusion of human rights law. The International Court of Justice as well as several UN human rights committees have rejected this
interpretation, on the basis of the text of the relevant human rights treaties, which define their applicability based on the degree of a government’s control over a person rather than on a state’s borders, and on the principle that human rights law and the law of occupation, as written and interpreted, are not mutually exclusive but complementary obligations that may both apply to populations under a government’s effective control.

International law does not require Israel to treat Palestinian residents of the West Bank as though they were Israeli citizens; for example, non-citizens do not have the right to vote. However, the rights of Israeli citizens—including settlers—do not include the right to benefit from discriminatory treatment that violates the rights of Palestinians in Israeli-occupied territory.

Israel’s differential treatment in law, regulations, and administrative practice directly affect the roughly 490,000 Jewish settlers and 420,000 Palestinians in areas under its exclusive control in the West Bank (including in Area C and East Jerusalem). In addition, the implications of Israel’s discriminatory policies are far broader, affecting many of the roughly 2.4 million Palestinians living in the cities and towns in the occupied West Bank (known as Areas A and B) where Israel has ceded most civil responsibilities to the Palestinian Authority.

That is because Area C contains substantial amounts of water resources, grazing and agricultural land, and the land reserves required for developing cities, towns, and infrastructure. It is also the only contiguous area in the West Bank, effectively isolating the cities and towns (which fall outside Area C) into disconnected enclaves.2 As a result, Israel effectively controls movement and access between Palestinian population centers.3

Palestinians must cross checkpoints to travel through Area C and need permits to build infrastructure that would connect to cities, towns, and villages (including roads, water and sewage pipes, and electricity towers). It is often impossible for Palestinian cities, towns, and villages that have outgrown municipal lands to expand into Area C, where Israel strictly controls Palestinian construction.

To the extent that Israel, which remains ultimately responsible for persons in the territories it occupies, has conferred powers on the Palestinian Authority (PA) in certain areas, the PA also has human rights responsibilities.

Since 1967, when it seized the West Bank from Jordan during hostilities—and under a variety of governments, since the right-wing Likud party first came to power in 1977—Israel has expropriated land from Palestinians for Jewish-Israeli settlements and their supporting infrastructure, denied Palestinians building permits and demolished “illegal” Palestinian construction (i.e., Palestinian construction that the Israeli government chose not to
authorize), prevented Palestinian villages from upgrading or building homes, schools, health clinics, wells, and water cisterns, blocked Palestinians from accessing roads and agricultural lands, failed to provide electricity, sewage, water, and other utilities to Palestinian communities, and rejected their applications for such services. Such measures have not only limited the expansion of Palestinian villages, but imposed severe hardships for residents, including forcing children to walk long distances for school, and leaving residents with limited access to medical care, which can often be accessed only by crossing multiple checkpoints, because there are no Palestinian general hospitals in Area C. Road blocks, checkpoints, and substandard roads delay ambulances and people seeking medical care, in addition to the costs they impose on the Palestinian economy.

Since Palestinians need special military permits to enter settlements, usually as laborers, medical services there are effectively unavailable to them. In some cases, Israel’s discriminatory policies have forcibly displaced Palestinians from their communities.

Such policies have not been applied to Jewish settlements. Notwithstanding Israel’s evacuation of settlers from Gaza and four West Bank settlements in 2005, and its evacuation of a handful of “outposts” (unauthorized settlements), settlements have expanded in size—growing from approximately 241,500 inhabitants in 1992 to roughly 490,000 inhabitants in 2010 (including East Jerusalem). Settlers enjoy continuing government subsidies, including funding for housing, education, and infrastructure such as special roads.

In most cases where Israel has acknowledged differential treatment of Palestinians—such as barring them from accessing “settler-only” roads and subjecting them to 505 roadblocks and checkpoints within the West Bank (as of June 2010)—it has asserted that the measures are necessary to protect Jewish settlers and other Israelis who are subject to periodic attacks by Palestinian armed groups, particularly during the second Palestinian intifada, or uprising, from 2000 to around 2006.4

But no security or other legitimate rationale can explain many instances of differential treatment of Palestinians, such as permit denials that effectively prohibit Palestinians from building or repairing homes, schools, roads, and water tanks; repairing a home does not under any stretch of the imagination constitute a security threat. In cases where Israel has justified policies that harm Palestinians on the grounds of security (whether that of residents of Israel or of settlers), it has often done so based on policies that define all Palestinians as a security threat by virtue of their race and national origin, rather than on policies that are narrowly tailored to well-defined security interests. A government’s differential treatment of different populations can sometimes be justified, but only to the extent that it serves a legitimate purpose and is narrowly tailored to have the least harmful impact possible.

In some cases, the harm caused to Palestinians by Israel’s discriminatory policies has been vastly disproportionate to the stated goal and has been carried out despite less harmful alternatives. For example, the Israeli military requires many Palestinians to obtain military “coordination” in order to access their olive groves and other agricultural lands where those lands are located near settlements. Such a policy purportedly protects settlers from
potential attacks, as well as protecting Palestinians from settler attacks, but in practice, the Israeli military prohibits (by refusing to “coordinate” access) Palestinian villagers from accessing their lands for almost the entire year. Residents of Al Janiya, a Palestinian village near the settlement of Talmon, cannot adequately cultivate their lands during the roughly two weeks per year that they have “coordinated” access to them, with the result that agricultural yields have declined sharply and their livelihoods have been harmed. The Israeli military has not attempted to alleviate this near-permanent exclusion of Palestinians from their lands by increasing the amount of time they are given access or by imposing restrictions on the settlers to enhance Palestinian access, effectively forcing Palestinians to bear the entire burden of ensuring settlers’ security.

Israel’s desire to protect settlers in the West Bank and East Jerusalem and citizens within Israel from the threat of attack by Palestinian armed groups does not justify policies that have nothing to do with security or that discriminate against all Palestinians as if they were all security threats.

Discriminatory practices also often violate Israel’s obligations towards Palestinians under the law of occupation. As the occupying power in the West Bank, including East Jerusalem, Israel is obliged to ensure the welfare of the occupied population and to limit its actions according to the law of occupation as set forth in international humanitarian law. In some cases, Israeli policies have made Palestinian communities virtually uninhabitable and
effectively forced residents to leave. According to a survey of households in Area C and East Jerusalem in June 2009, some 31 percent of Palestinian residents had been displaced since 2000.5 The unnecessary and effectively forcible transfer of the occupied population by the occupying power to other parts of the territory, by unlawfully demolishing homes or by other measures that make it impossible to remain in a given community, is a serious violation of Israel’s obligations under the law of occupation. Israel’s confiscation of land and natural resources for the benefit of settlements exceeds its authority as an occupying power, as does its demolition of Palestinian homes and other property in any case except for urgent
military necessity.

Israel’s highest court has ruled that certain measures imposed against Palestinian citizens of Israel were illegal because they were discriminatory. The court has also ruled that certain Israeli military measures in the West Bank, including bans on Palestinian drivers using certain roads and the route of certain parts of Israel’s separation barrier, have “disproportionately” harmed Palestinians when weighed against the benefit to settlers and other Israelis. However, Human Rights Watch is not aware that the courts have adjudicated on the merits of the question of whether any Israeli practice in the West Bank discriminated against Palestinians, although petitioners have raised such claims in a number of cases.6

In the cases that Human Rights Watch has examined, there appears to be no legal justification for Israel’s differential treatment of Palestinians, which breaches Israel’s obligations under international law, violating the prohibition against discrimination as well as a host of associated rights, including the right to freedom of movement, the right to a home, and the right to health.

This report is not a comprehensive overview of all instances of discrimination between settlers and Palestinians or a complete survey of all of the policies and practices that have resulted in the forcible displacement of Palestinians. Rather, it addresses a representative sample of discriminatory policies, laws, and regulations that privilege Jewish settlers to the detriment of Palestinians. As noted, Israel contests the illegality of its settlements.

Quite apart from that isolated position, Israel should nonetheless immediately cease these discriminatory policies, and allow Palestinians to build and develop their land, travel and move freely, with equitable access to water, electricity, and basic infrastructure, except to the extent that limits are justified by narrowly-tailored security needs.

Israel’s allies—above all the United States—should strongly encourage the Israeli government to abide by its obligations and should themselves ensure that they are not contributing to or complicit in the violations of international law caused by the settlements, such as the discriminatory human rights violations that are the focus of this report. Foreign governments that are export markets for settlement products should thus not provide incentives such as preferential tariff treatment for those products, particularly in cases where ongoing discriminatory rights violations against Palestinians have contributed to the production of goods – for example, agricultural crops exported from settlements that use water from Israeli-drilled wells that have dried up nearby Palestinian wells, limiting Palestinians’ ability to continue cultivating their own agricultural lands and even gaining access to drinking water.

The United States should consider suspending financing to Israel in an amount equivalent to the costs of the Israeli government’s spending in support of settlements and the discriminatory policies documented in this report, since the US’s $2.75 billion in annual military aid to Israel substantially offsets these costs.

Foreign governments also should ensure that laws and regulations granting tax exemptions for private, charitable donations or charitable organizations that support settlements are consistent with governmental obligations to ensure respect for international law, including human rights prohibitions against discrimination. For example, numerous US-registered taxexempt organizations fund settlements that were established through discriminatory means of land confiscation, planning and construction, that exclude Palestinians from any similar benefits, and continue to violate the human rights of Palestinian residents of the West Bank through ongoing expansion and land confiscation, continued restrictions on freedom of movement, and other practices. The US Congress should request the General Accounting Office to prepare a report on the amounts and end-uses of tax-exempt funding flows to settlements, and the lawfulness of tax-exemptions for such support according to the US’s international obligations.

Israeli and multinational corporations and their subsidiaries profit from settlements in a variety of ways, including by receiving, producing, exporting, or marketing settlement agricultural and industrial goods, and by financing or constructing settlement buildings and infrastructure. Companies have directly contributed to discriminatory rights violations against Palestinians, for example through business activities based on lands that were unlawfully confiscated from Palestinians without compensation for the benefit of settlers, or activities that consume natural resources like water or rock quarries to which Israeli policies provide settlement industries preferential access, while denying equitable access to Palestinians. These businesses also benefit from Israeli governmental subsidies, tax abatements, and discriminatory access to infrastructure, permits, and export channels; Palestinian businesses deprived of equitable access to these government-provided benefits are sometimes as a result unable to compete against settlement-based companies in Palestinian, Israeli, or foreign markets.

Companies that benefit directly from discrimination should urgently and impartially review the impact of their activities on Palestinians’ human rights and identify and implement plans to prevent and mitigate these violations, in accordance with their corporate codes of ethics and with international standards, such as the “Ruggie framework” developed by the Special Representative of the UN Secretary-General on business and human rights, and the Organization for Economic Co-operation and Development (OECD) guidelines for multinational enterprises, which require businesses to respect the human rights of those affected by their activities. In cases where companies’ involvement in activities in the Occupied Palestinian Territories is found to contribute to serious violations of international law, including prohibitions against discrimination, companies should, in consultation with
affected settlers and Palestinians, end such operations.

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