Response of Mr. Alan Baker
Legal Advisor of the Israel Ministry of Foreign Affairs
On the Applicability of the ICCPR to the Current Situation in the West Bank and Gaza Strip

Geneva, 15 May 1998

Madam Chair,

My delegation fully understands why several of the members of this Committee, as well as several NGO’s have raised the question as to whether, and to what extent Israel is obliged or is not obliged to include in its report a coverage of the application of the Covenant to the territories of the West Bank and the Gaza Strip.

This question clearly touches on one of the most interesting and renowned interpretative discussions of the provisions of Article 2, paragraph 1 of the Covenant, which refers to the undertaking to respect the rights of the Covenant vis-a-vis all individuals "within its territory, and subject to its jurisdiction".

Madam Chair, I do not intend here to enter into a discussion of what has been described by Dr. Manfred Nowak, in his authoritative Commentary on the Covenant, as "this awkwardly formulated provision", – a discussion which has already taken place in several of the learned and authoritative commentaries of the Covenant, as well as in judicial tribunals examining equivalent provisions in other treaties. However, in the light of such discussions, I would venture to say, Madam Chair, that the central question which we in Israel, were faced when drawing up our Initial and First Periodic Report, was whether the individuals, residents of the territories are indeed subject to Israel’s jurisdiction, whether, indeed, the authorities presently exercising judicial, legislative and executive powers and responsibilities vis-a-vis the vast majority of the population of those areas are, in any way, subject to Israel’s actual control, jurisdiction, authority and responsibility.

Madam Chair, the European Commission of Human Rights, in the case of Cyprus vs Turkey (18 Yearbook of the European Convention on Human Rights 83(1975)) equated the concept of jurisdiction with "actual authority and responsibility", in terms of actual civil or military control over the territory.

This discussion becomes even more involved if we proceed from the question of the nature of jurisdiction and control, to the more practical and specific question of the actual extent of Israel’s powers and responsibilities for acts done and actions taken within the territory itself.

Madam Chair, even assuming that there existed a clear-cut of actual authority and responsibility in the context of jurisdiction, there still arises the question regarding the applicability in the territory in question of norms and principles of international law pursuant to the Hague and Geneva Conventions. These norms and principles, as we know, are aimed at situations involving occupation or foreign administration of territory within the general framework of a state of hostilities, including a hostile population and all other related and accompanying elements which are concomitant with such a unique situation.

To what extent, Madam Chair, could such norms and principles be compatible with the provisions of the Covenant, which are molded and finely tuned to meet the exigencies of a normal relationship between the state, its government and its citizens, resident and population?

Indeed, in this context, at the beginning of the 1980’s, in proposing to the international community the launching of a "new international humanitarian order", Crown Prince Hassan of the Hashemite Kingdom of Jordan, clearly voiced the inherent distinction between the two series of norms, in stating in his address before the 36th session of the United Nations General Assembly (28 September 1981) that:

"humanitarian law of armed conflicts must be distinguished from the law of human rights, whether international, as in the two United Nations Covenants of Human Rights, or the regional law of the European Convention of Human Rights of 1950. In human rights regimes the purpose is to defend the individual human being from loss of life and liberty and from the cruel treatment and oppression at the hands of the State to which he is subjected, whether as a citizen or as a ‘person temporarily subject to its jurisdiction’. Human rights are the legal shield against the oppression of the government of a State directed at the human being and his development. In the humanitarian law of armed conflicts, the purpose is to balance the needs of humanity against the nature of warfare: no easy task."

In light of a these dilemmas, Madam Chair, we can only examine our own actual situation – which, by all accounts is a unique one.

In an ongoing political process in the Middle East, composed of a series of agreements which are in mid-implementation and continuing negotiation, Israel has transferred actual authority and responsibility over more than 90% of the population of the West Bank and the Gaza Strip to a Palestinian autonomous authority. These powers include legislative, judicial and executive powers over virtually all civil spheres of government. In fact, the vast majority of spheres covering civil aspects of life, as well as a variety of security issues, are now under the responsibility of the Palestinian Council in the whole of the West Bank and the Gaza Strip. For example, the spheres of interior affairs, education and culture, employment health, insurance, labour, population registry and documentation, as well as social welfare, agriculture, local government, public works, housing, statistics and treasury, are now under Palestinian responsibility.

The Palestinian Council therefore has the duty, together with the ability and the responsibility, to discharge its powers in a manner consistent with internationally accepted norms, be they entrenched in the ICCPR or in other documents.

According to the Interim Agreement and pending completion of the negotiating process, Israel remains responsible for powers and responsibilities which have not been transferred to the Palestinian Council. These include external security, and, to some respect, internal security and public order where these have not been transferred to the Palestinian Council. It also included a number of civilian responsibilities related to the administration of territory in areas where there is almost no civilian population. To the extent that issues of human rights arise in the exercise of these responsibilities, Israel remains committed to upholding the applicable internationally accepted norms and principles of human rights.

The process, as I have said, is dynamic and ongoing. The territorial scope of the autonomy, as well as the substantive character and content of the various powers and responsibilities, is in a continual process of development and change. We are all witness to the present negotiations on additional percentages of territory which in the forthcoming few weeks will be transferred to the Palestinian jurisdiction and actual control.

Madam Chair, Israel was very much aware of the dangers involved in transferring actual powers and responsibilities without adding some proviso, somewhere, as to the need to ensure human rights guarantees to all individuals in the territories being transferred. We did not need the approaches to us by several States, intergovernmental organisations as well as international and local NGO’s to remind us to try to negotiate into the agreements with our Palestinian partners, a provision which would guarantee such rights, even in what is clearly an interim, intermediate, and very sui generis situation, pending a negotiated settlement of the permanent status of the area.

To this end, and after long negotiation, we were able to achieve a text for an Article entitled "Human Rights and the Rule of Law" (Article XIX of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip) – which was considerably truncated as compared to the original formulation which we proposed. Article XIX reads as follows:

"Israel and the [Palestinian] Council shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms and principles of human rights and the rule of law."

Madam Chair, through this provision, which constitutes a very clear and open mutual and reciprocal commitment, we hoped and continue to hope that the human rights protections will be maintained during this interim, and difficult period, pending the achievement of an overall settlement for the benefit of all individuals throughout the area.

We trust that through ongoing bilateral dialogue with the Palestinians on all matters, including human rights, we will safely pass through this period.