Human Rights in Indefinite Occupation: Palestine

Abstract

This article suggests a framework for realizing human rights while retaining the protections of international humanitarian law (IHL), in the context of Israel’s 52-year occupation of the Palestinian territory. It proposes using norms of nondiscrimination and progressive realization of economic and social rights to interpret the content of the occupant’s obligations to provide for civilian welfare. It argues that Israel should provide Palestinians living under occupation with the same level of services it provides its own citizens.

The framework takes into account of the length of the occupation and actions Israel has taken to blur the distinction between its territory and the occupied territory. Relying on principles of good faith and estoppel, it argues that such conduct weakens what would otherwise be valid arguments against allocating funds to pay for Palestinian services or allowing Palestinians entry into Israel, where such funding and travel are needed to fulfill IHL obligations and human rights.

The analysis is grounded in the circumstances of the occupied Palestinian territory but can be applied to other prolonged occupations, as well. It thus contributes to an underdeveloped aspect of the scholarship on complementarity between IHL and international human rights law, namely the content of an occupant’s duty to realize economic, social and cultural rights. It includes recommendations for third party states, international organizations and civil society actors.

Keywords: IHL, occupation, human rights, nondiscrimination, Israel/Palestine