FIDH contribution to the EU/ Israel Association Committee

08/10/2002
Press release

Since 1st June 2000, the EU and Israel are linked by a Euro-Mediterranean Agreement concerning trade, economy and cooperation. This Agreement establishes a political dialogue with regular meetings taking place between the parties to review its implementation. Article 2 of the Agreement states that the relationship between the EU and Israel is to be based on respect for human rights and democratic principles, which guide their internal and international policy.

The FIDH has been advocating for the inclusion of such a clause into Association Agreements with third countries. The FIDH trusts that the time has now come for implementation of this mechanism.

The communication on human rights, adopted on 8 May 2001 by the European Commission states that "in all dialogues with third countries, the Commission will in future seek to ensure that the discussion covers issues of concern relating to human rights and democracy" (...) "however a prerequisite for success is that these states are genuinely ready to co-operate. The EU should pursue this approach wherever possible, while recognising that in some cases, the third country may have no genuine commitment to pursue change through dialogue and consultation, and negative measures may therefore be more appropriate".

In June 2001, the Council’s conclusions on the European Union’s role in promoting human rights and democratisation in third countries reaffirm its strong commitment to "mainstreaming of human rights and democratisation into EU policies and actions" and states that "human rights and democratisation should systematically and at different levels be included in all EU political dialogues and bilateral relations with third countries".

It is also stated that "in line with the European Union’s commitment to the promotion of human rights and to apply, whenever possible, a positive and supportive approach, the Council believes that a considerable degree of flexibility should be exercised in using EU and EC instruments and mechanisms, such as political dialogues, human rights clauses and financial incentives".

Since two years, the situation has deteriorated in an unprecedented way in the Occupied Palestinian Territories (OPTs). As a consequence, the FIDH considers that the European Union is entitled to raise the human rights issue in its discussions with Israel in the framework of the Association Agreement.

Israel’s indiscriminate, excessive and disproportionate use of force violates international humanitarian law, including the fourth Geneva Convention. Recent human rights and humanitarian law violations by the Israeli forces include in particular:

 Wilful killings, arbitrary executions and targeted assassinations. According to B’Tselem, 1397 Palestinians have been killed since the outbreak of the second intifada, whereof at least 79 were extrajudicially executed .

 Systematic destruction of the Palestinian infrastructure.

 Numerous house demolitions, which amount to collective punishment, prohibited by article 53 of the International Covenant on Civil and Political Rights. According to B’Tselem, since October 2001, 50 houses have been demolished .

 Massive violations of the freedom of movement, guaranteed by article 12 of the International Covenant on Civil and Political Rights. The sealing off of the Palestinian territories from the outside world is accompanied by an internal "sealing off".

 The prolonged closure of the Occupied Territories gives rise to many violations of economic and social rights. In particular the right to health is denied by actions aimed directly at preventing access to care, for instance by preventing hospitals from getting supplies, and by attacking ambulances . The right to education and to the right to work are clearly violated by these closures.

 Massive arbitrary arrests of Palestinians. Some are transferred to detention centres without their families being informed. Those who are released are usually left in a no man’s land, far from their domicile, which they cannot reach because of the severe restrictions of movement within the territories. As of September 30, It is evaluated that about 2 765 people are detained in various facilities in Israel and the OPTs , whereof many are administrative detainees. These detainees do not benefit from legal guarantees enabling them to exercise their right of appeal, and it is often impossibility for the detainees to contact their lawyers.

 Moreover, many sources indicate inhuman conditions of detention, including torture, in violation of the International Covenant on Civil and Political Rights and the International Covenant against torture and other cruel inhuman, and degrading treatments. One of the most famous methods used is the "Shabah position".

Arbitrary detention is illustrated by the case of Marwan Barghouti, a democratically elected Palestinian representative of the Palestinian Legislative Council. On 1st October, the FIDH submitted the case of Marwan Barghouti to the UN Working Group on Arbitrary Detention, considering that there was no legal basis for the detention, that he was detained on the grounds of his exercise of freedom of expression and that there were serious elements to fear that he would not benefit from a fair trial.

The Israeli Defence Forces arrested Marwan Barghouti, Secretary General of the Fatah in the West Bank, on 15 April 2002 in Ramallah. in violations of the Oslo agreements. Article 1 of Annex III (Protocol concerning legal matters), states that: "The criminal jurisdiction of the Palestinian Authority covers all offenses committed in the areas under its territorial jurisdiction...". According to Article 5,"In the case of an offence committed in the Territory by a non-Israeli against Israel or an Israeli, the Palestinian Authority shall take measures to investigate and prosecute the case, and shall report to Israel on the result of the investigation and any legal proceedings."

Moreover, Marwan Barghouti is an elected Palestinian representative and as such should benefit from parliamentary immunity.

In addition, the transfer of Marwan Barghouti from the Occupied Territory to detention facilities in Israel proper is illegal under international law. Indeed article 49 of the Fourth Geneva Convention prohibits the transfer of people under occupation to the territory of the occupier. "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive".

Marwan Barghouti is a democratically elected Palestinian representative who has always supported and defended the principle of peace based on UN resolutions, in particular the idea of peace based on the co-existence of a Palestinian and an Israeli state. He is one of the principal artisans of Israeli-Palestinian talks. Because of these opinions, Marwan Barghouti is being presented as a terrorist leader according to the indictment brought against him by the Israeli authorities. Right to freedom of expression is guaranteed by Article 19 of the Universal Declaration of Human Rights: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers" and Article 19 of the International Covenant on Civil and Political Rights

There are also serious elements to question the fairness of the procedure against Marwan Barghouti, guaranteed notably by article 10 of the Universal Declaration of Human Rights and article 14 of the International Covenant on Civil and Political Rights. First, because, the tribunal is not competent to judge him, as stated above. Second, his rights to defence, guaranteed by article 14b of the ICCPR which states that everyone shall be entitled "To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing", has been hampered as he has had limited access to his lawyers and to his file.

In addition, conditions of detention of Marwan Barghouti are reported to be in violation of international law. According to LAW society, member organization of the FIDH in Palestine, Marwan Barghouti has been subjected to sleep deprivation, position abuse (known in Arabic as "shabeh") in violation of Article 5 the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Those elements are strong indicators that Marwan Barghouti will not enjoy a fair trial.

Moreover, the FIDH is very concerned with the fact that a lawyer from the Paris bar, whom the FIDH had sent to observe the trial of Marwan Barghouti on October 3, was refused entry into Israel. In violation of reciprocal free circulation agreements between France and Israel, she was stopped at Ben Gurion Airport, interrogated and then expelled without having been able to enter the country. This refused entry is also in flagrant violation of the Declaration on Human Rights Defenders adopted by the General Assembly of the United Nations December 9, 1998 and, in particular of its article 9.3.b, which stipulates that everyone has the rights, individually of in association with others to "attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments".

 Territorial scope of the EU/ Israel Association agreement
In addition, in spite of the clear position repeatedly made by the EU about the territorial scope of the EU/Israel Association agreement, Israeli authorities continue to consider that the Agreement covers all the territories under Israeli administration, assertion which blatantly contradicts numerous UN resolutions. Israel’s occupation of the 1967 OPTs, including East Jerusalem, is illegal under international law.
Israel strangulates the Palestinian economy, notably through its policy of closure, the building of settlements, the destruction of buildings and agricultural lands. As a result, the EU/PA Interim agreement has not produced any benefit for Palestinian people. The EU brings a decisive financial support to the Palestinian Authority and to the Palestinian people, including through UNRWA. That assistance is vital, but Palestinians must also have the possibility to develop their own economy. The FIDH considers that Israel currently benefits from trade preferences in violation of international law.

 Recommendations
In view of the large-scale human rights and humanitarian law violations committed by Israel and in view of the fact that in practice the Agreement continues to cover goods produced in the Occupied Territories (in the settlements), the FIDH calls on the EU to take negative measures under the agreement, such as the suspension of trade benefits.

Without such measure taken, the EU would contradict its own coherence since it took the initiative of the adoption by the United Nations High Commissioner for Human Rights of a resolution condemning the Israeli policy of settlement.

If sanctions are not adopted under the human rights clause in the present context, it raises questions about the degree of violations, which must be reached in order to adopt negative measures under that provision. In any case, inaction from the EU on such occasions as the Association committee and Association council would constitute a breach of its own commitments and decisions, in particular the Council conclusions of June 2001.

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