1

IN THE MATTER OF:

THE PARTICIPATION OF RESIDENTS OF AREA C OF THE OCCUPIED

PALESTINIAN TERRITORY OF THE WEST BANK IN THE PLANNING PROCESS

RE HOUSING

EXPERT OPINION

Of:

On behalf of:

RABBIS FOR HUMAN RIGHTS

Professor Max du Plessis

School of Law, University of KwaZulu-Natal,

Durban

Bay Group Advocates

12th

Floor, 6 Durban Club Place, Durban

Email: maxduplessis@mac.com

Christopher Gevers

School of Law, University of KwaZulu-Natal

Durban

Email: gevers@ukzn.ac.za

2

Table of Contents

1. Introduction ................................................................................................................... 3

2. International Human Rights Law, International Humanitarian Law and the lex

specialis doctrine .................................................................................................................. 4

3. Planning permission in the West Bank under International Human Rights Law ................ 8

3.1 The application of human rights obligations to Area C ................................................................... 8

3.2 Specific Rights violations .............................................................................................................. 12

3.2.1 The right to adequate housing ............................................................................................... 13

3.2.2 The right to participate as an entitlement of the right to adequate housing ........................... 16

3.2.3 Participation as an indirect obligation flowing from the security of tenure .......................... 20

3.2.4 Interference with privacy, family, home or correspondence ................................................. 22

3.2.5 The right to equality ............................................................................................................... 24

4. Conclusion .................................................................................................................... 29

3

1. Introduction

1. For the reasons that follow, in our opinion Israel is obliged under international human rights

law (IHR) to allow residents of the West Bank – and Area C in particular – to participate

meaningfully in the planning processes relating to their community’s housing needs. A

corollary of that obligation is that Israel must therefore remove articles 2(2) and 2(4) of

Military Order 418 (MO 418) and reinstall local and district planning committees for

Palestinian villages in Area C to ensure such meaningful participation.

2. We have provided this opinion on the basis of instructions that MO 418 does indeed severely

curtail Palestinian participation in planning and decision-making in Area C. In addition, we

have been informed that the Israeli planning policies in Area C do not serve the welfare of

the Palestinian population and amount to a planning failure. Taking that as our assumption,

we have been asked to consider Israel’s conduct in the light of the applicable legal rules of

IHR.

3. First, we submit that Israel’s obligations under IHR apply to the inhabitants of Area C, and

that articles 2(2) and 2(4) of MO 418 violate these obligations insofar as preventing their

participation in planning and decision-making is concerned. Further, in order to observe

those obligations Israel should reinstate the planning committees that existed pre-MO 418,

based on the existing municipal distribution.

4. We begin by setting out the relationship between IHR and international humanitarian law

(IHL) in the context of armed conflict generally and belligerent occupation in particular,

concluding that the rules of IHR govern the conduct of the Israeli Civil Administration with

regard to the planning regime in Area C. Thereafter, we measure Israel’s conduct against the

applicable IHR rules, in particular the right to housing, the right to equality and the right to

non-interference in one’s family life; concluding that the relevant articles in MO 418 violate

at least these rights individually and severally.

4

2. International Human Rights Law, International Humanitarian Law and

the lex specialis doctrine

5. We consider the scope of IHR norms applicable to Area C in more detail below. However, it

is necessary as a preliminary issue to determine the relationship between these norms and

those applicable under international humanitarian law (IHL) at a general level.

6. Traditionally, human rights were considered to apply only in times of peace and were

thought to be limited to the territory of states. Similarly, IHL as a body of rules applicable to

armed conflict was traditionally applicable to armed conflicts between states (international

armed conflicts) and not conflicts involving non-state actors (non-international armed

conflicts). However, developments in the two legal regimes over the past 50 years have

meant that today there is considerable overlap between human rights and humanitarian law,

most significantly because IHR has come to be applied extraterritorially to states’ actions in

international armed conflicts, while IHL has come to be applied to non-international armed

conflicts occurring within the territory of a single state. These developments have raised

questions regarding the application of both of these legal regimes to the same situation, and

how to manage conflicts in this regard.

7. These questions have not been addressed consistently by the International Court of Justice

(ICJ), the various Treaty Bodies responsible for interpreting these obligations, regional

human rights bodies, domestic courts, or academics.

8. Thus, in the Legality of the threat or use of nuclear weapons advisory opinion, the ICJ

attempted to draw a distinction between the two sets of norms in the following manner:

“The Court observes that the protection of the International Covenant on Civil and

Political Rights does not cease in times of war, except by operation of Article 4 of the

5

Covenant whereby certain provisions may be derogated from in a time of national

emergency. Respect for the right to life is not however, such a provision. In principle,

the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test

of what is an arbitrary deprivation of life, however, then falls to be determined by the

applicable lex specialis, namely, the law applicable in armed conflict which is

designed to regulate the conduct of hostilities. Thus whether a particular loss of life,

through the use of a certain weapon in warfare, is to be considered an arbitrary

deprivation of life contrary to Article 6 of the Covenant, can only be decided by

reference to the law applicable in armed conflict and not deduced from the terms of

the Covenant itself.”1

9. The Court’s construction lends itself to the possibility of the displacement of human rights in

times of armed conflict. As Lubell notes, “the use of the term lex specialis might have been

construed as support for a claim that whereas human rights law then does not disappear, it

nevertheless is in effect displaced by international humanitarian law”. Technically speaking,

this is the proper use of the lex specialis doctrine, which presumes a norm conflict and, in

terms of which, IHL (lex specialis) displaces IHR (lex generalis). As Schabas notes: “When

international humanitarian law applies exclusively, we are in the presence of lex specialis”.2

10. However, the ICJ has attempted to ‘clarify’ its position on this relationship. In the Wall

Opinion the Court held:

“As regards the relationship between international humanitarian law and human

rights law, there are three possible situations: some rights may be exclusively matters

of international humanitarian law; others may be exclusively matters of human rights

law; yet others may be matters of both these branches of international law. In order 1 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, p. 240.

2 Noam Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’, Vol. 87 No. 860 International Review

of the Red Cross (2005), p.738. William A. Schabas, ‘Lex specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum, 40(2) Israeli Law Review (2007), p. 597.

6

to answer the question put to it, the Court will have to take into consideration both

these branches of international law, namely human rights law and, as lex specialis,

international humanitarian law.”3

11. This mixed approach was confirmed indirectly in the Armed activities on the territory of the

Congo (Democratic Republic of the Congo v Uganda) case. There, having found that Uganda

was the occupying power in Ituri at the relevant time, the ICJ concluded:

“[Uganda] was under an obligation, according to Article 43 of the Hague Regulations of

1907, to take all the measures in its power to restore, and ensure, as far as possible,

public order and safety in the occupied area, while respecting, unless absolutely

prevented, the laws in force in the DRC. This obligation comprised the duty to secure

respect for the applicable rules of international human rights law and international

humanitarian law, to protect the inhabitants of the occupied territory against acts of

violence, and not to tolerate such violence by any third party.”

12. As far as the Human Rights Committee (the Treaty Body created under the International

Covenant on Civil and Political Rights (ICCPR) to monitor and ensure compliance with the

ICCPR) is concerned, it has taken a generally complementary approach to the ICCPR and

IHL. It noted this in General Comment 31:4

“[T]he Covenant applies also in situations of armed conflict to which the rules of

international humanitarian law are applicable. While, in respect of certain Covenant

rights, more specific rules of international humanitarian law may be specially relevant

for the purposes of the interpretation of Covenant rights, both spheres of law are

complementary, not mutually exclusive.”

3 ICJ, Legal Consequences cf the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C.

J. Reports 2004, p. 46. 4 HRC, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the

Covenant, adopted on 29 March 2004 (2187th meeting), para. 11.

7

13. Given the modified approach of the ICJ in its Wall Opinion, the question is how to determine

which system applies in a given scenario. There is little guidance given by the ICJ or the

human rights treaty bodies in this regard. The temptation – which the HRC appeared to

succumb to – is to say that the rule which offers the individual the most protection should

apply in cases of an overlap. However, this conflates the differences between the two bodies

and ignores the aspects of IHL – such as the targeting of enemy combatants and the

justification of military necessity – that are irreconcilable with the raison d’etre of human

rights: the protection of the individual.

14. We submit that the correct approach is the one proposed by Campanelli, who writes:

“[T]he law of armed conflicts, as lex specialis, contains rules which take precedence over

some protective human rights norms. Indeed, where the law of war deals with civilians by

regulating the situation in a manner incompatible with the regime established for the

same situations by human rights law, this conflict of rules is generally resolved in favour

of the special rule of the law of armed conflicts. The special nature of the law of armed

conflicts therefore allows it to derogate from general rules, such as those of human rights

law.

Nevertheless, while it is true that the law of armed conflicts takes priority during conflicts

because of its lex specialis nature, it is also true that the rules protecting human rights –

leges generales – can continue to be applied during a conflict, on certain conditions:

first, their application must be possible ratione personae and, if treaty-based rules are

involved, ratione loci; second, they must not conflict with a special rule of the law of

armed conflicts; and, third, they must not be derogated in case of war, public emergency

or a similar scenario that would limit or preclude their applicability during an armed

conflict.

What is more, the principle of the universality of human rights, coupled with the principle

of humanity – which in international humanitarian law takes the form of the Martens

Clause – encourage an interpretation according to which humanitarian law, rather than

8

being an alternative to the law of peace, should henceforth be seen as a mere exception

to a full application of that law.”5

15. Adopting this approach, we consider in the next section the application of the ICCPR and

ICESCR to the conduct of the Israeli Civil Administration (ICA) in Area C.

3. Planning permission in the West Bank under International Human

Rights Law

3.1 The application of human rights obligations to Area C

16. On 3 October 1991 Israel ratified the International Covenant on Economic, Social and

Cultural Rights 1966 (ICESCR) and the International Covenant on Civil and Political Rights

1966 (ICCPR) (both of which came into force in 1976), as well as the United Nations

Convention on the Rights of the Child (CRC) 1989 (which came into force on 2 September

1990). It is therefore a party to these three treaties and is obliged to comply with their

provisions, as interpreted by the relevant Treaty Bodies.

17. As noted above, the obligations of a state to respect human rights do not cease in times of

armed conflict. However, the question of whether human rights obligations of a state apply to

an extraterritorial armed conflict – i.e. beyond its borders – is more complex.

18. The general principle is eloquently stated by Judge Bonnello in his concurring opinion in the

Al-Jeddah case that was heard by the Grand Chamber of the European Court of Human

Rights recently. He notes:

5 See Danio Campanelli “The law of military occupation put to the test of human rights law”, Vol.90 No. 871

International Review of the Red Cross (2008), p. 654.

9

“[T]hose who export war ought to see to the parallel export of guarantees against the

atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of

being labeled human rights imperialists.”6

19. Both the ICJ and the respective Treaty Bodies of the ICCPR and the ICESCR have held that

their terms do apply extraterritorially in certain instances, including occupation.

20. In the Wall Opinion, the ICJ considered whether the obligations under the ICCPR and

ICESCR apply “only on the territories of the States parties thereto or whether they are also

applicable outside those territories and, if so, in what circumstances”. Insofar as the ICCPR

is concerned, after considering article 2 of the Covenant, the ICJ held:

“[W]hile the jurisdiction of States is primarily territorial, it may sometimes be exercised

outside the national territory. Considering the object and purpose of the International

Covenant on Civil and Political Rights, it would seem natural that, even when such is the

case, States parties to the Covenant should be bound to comply with its provisions”.7

21. In reaching this conclusion the Court considered the practice of the Human Rights

Committee and the travaux preparatoires of the ICCPR. Further, it took note of Israel’s

position that the ICCPR ‘does not apply beyond its own territory, notably in the West Bank

and Gaza’, but cited the Human Rights Committee’s 2003 response to this position (with

clear approval) that:

“[I]n the current circumstances, the provisions of the Covenant apply to the benefit of the

population of the Occupied Territories, for all conduct by the State party's authorities or

agents in those territories that affect the enjoyment of rights enshrined in the Covenant

6 ECtHR, Concurring Opinion of Judge Bonello, Al-Jeddah v UK, Grand Chamber (2011), para. 38

7 ICJ, Wall Opinion, paras. 107 – 109.

10

and fall within the ambit of State responsibility of Israel under the principles of public

international law (CCPR/C0/78/1SR, para. 11)”.8

22. Further, in the Armed Activities case, the ICJ held that the conduct of Ugandan forces on

Congolese territory resulted in a number of violations of that state’s obligations under the

ICCPR and numerous other human rights instruments. In so doing, the Court repeated “that

international human rights instruments are applicable ‘in respect of acts done by a State in

the exercise of its jurisdiction outside its own territory’, particularly in occupied

territories”.9

23. For its part, the Human Rights Committee has interpreted the terms “within its territory and

subject to its jurisdiction” – contained in article 2 of the ICCPR – to be independent grounds

for application of the Covenant, the latter ground providing the basis in its view for

extraterritorial application of the ICCPR.10

24. Thus, the Committee has interpreted the phrase within its jurisdiction to mean that States’

obligations under the ICCPR can apply extraterritorially in certain instances. Furthermore, in

its General Comment 31, the Human Rights Committee noted:

“This principle also applies to those within the power or effective control of the forces

of a State Party acting outside its territory, regardless of the circumstances in which

such power or effective control was obtained, such as forces constituting a national

contingent of a State Party assigned to an international peace-keeping or peace-

enforcement operation.”11

8 ICJ, Wall Opinion, para. 110.

9 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005,, p.. 242 – 243. 10

Burgos/Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979 (29 July 1981), U.N. Doc. CCPR/C/OP/1, at 88 (1984). 11

HRC, General Comment No. 31, para. 10.

11

25. In July 2010 the Committee stated that Israel “should ensure the full application of the

Covenant in Israel as well as in the occupied territories, including the West Bank, East

Jerusalem, the Gaza Strip and the occupied Syrian Golan Heights” and should “ensure that

all persons under its jurisdiction and effective control are afforded the full enjoyment of the

rights enshrined in the Covenant.”12

26. Insofar as the ICESCR is concerned, the situation is complicated by the fact that article 2 of

the Covenant sets out the extent of the obligations on states parties in respect of its

provisions, but not its scope (contra article 2, ICCPR). Nevertheless, in its Wall Opinion the

ICJ noted that “it is not to be excluded that it applies both to territories over which a State

party has sovereignty and to those over which that State exercises territorial jurisdiction”.13

27. Once again the Court considered Israel’s consistent position – stated before the ESCR

Committee – that “the Covenant does not apply to areas that are not subject to its sovereign

territory and jurisdiction”. The ESCR Committee rejected this argument and reaffirmed “its

view that the State party's obligations under the Covenant apply to al1 territories and

populations under its effective control”.14

The ICJ agreed with the Committee, noting:

“[T]he Court cannot accept Israel's view. It would also observe that the territories

occupied by Israel have for over 37 years been subject to its territorial jurisdiction as

the occupying Power. In the exercise of the powers available to it on this basis, Israel

is bound by the provisions of the International Covenant on Economic, Social and

Cultural Rights. Furthermore, it is under an obligation not to raise any obstacle to

the exercise of such rights in those fields where competence has been transferred to

Palestinian authorities.”15

12

HRC, Concluding Observations: Israel, Ninety-ninth session,Geneva, 12–30 July 2010, CCPR/C/ISR/CO/3, para. 5. 13

ICJ, Wall Opinion, para. 112. 14

(EIC.12IlIAdd.90, paras. 15 and 31) 15

ICJ, Wall Opinion, para. 112. See further Concluding Observations of the Committee on Economic, Social and Cultural Rights Committee: Israel, 31/08/2001. E/C.12/1/Add.69.

12

28. In summary, the ICJ has held that the ICCPR and the ICESCR apply to the OPT,

notwithstanding the arguments raised by Israel in this regard. Crucially, this included –

insofar as the ICESCR is concerned – the right to housing.

29. For the sake of completeness, we note that the comparative ECHR jurisprudence on this has

recently been clarified. In its latest decision in Al-Skeini, the Grand Chamber of the ECHR,

after outlining the two different bases upon which the Convention might be applied

extraterritorially – the first flowing from a personal notion of jurisdiction and the second a

spatial notion of jurisdiction – found as follows:

“[F]ollowing the removal from power of the Ba’ath regime and until the accession of the

Interim Government, the United Kingdom (together with the United States) assumed in

Iraq the exercise of some of the public powers normally to be exercised by a sovereign

government. In particular, the United Kingdom assumed authority and responsibility for

the maintenance of security in South East Iraq. In these exceptional circumstances, the

Court considers that the United Kingdom, through its soldiers engaged in security

operations in Basrah during the period in question, exercised authority and control over

individuals killed in the course of such security operations, so as to establish a

jurisdictional link between the deceased and the United Kingdom for the purposes of

Article 1 of the Convention.”16

30. We also highlight that Israel’s own courts have taken a similar line (albeit cautiously), noting

in Mara’abe v. Prime Minister of Israel: “…we shall assume – without deciding the matter –

that the international conventions on human rights apply in the area.”17

3.2 Specific Rights violations

16

ECtHR, Al-Skeini v UK, Grand Chamber (2011), para. 149, emphasis added. See further IACHR, Alejandre v. Cuba, Case 11.589, Inter-Am. C.H.R., Report No. 86/99, OEA/Ser.L/V/II.106 Doc. 3 rev. en 586 (1999). 17

HCJ 7957/04 Mara’abe v. Prime Minister of Israel, 21 June 2005, translated from the original Hebrew in (2006) 45 International Legal Materials 202, 215, para. 27.

13

31. Accepting in light of the above authorities that international human rights law is applicable to

Israel’s conduct in Area C, we now turn to consider the specific rights implicated by the

conduct of Israel.

32. In doing so we will consider: (i) the applicable content of the right in question, (ii) whether

the right in question is displaced by a ‘special rule’ of IHL under the lex specialis doctrine

and, (iii) to the extent that the right has not been displaced, whether Israel’s conduct meets

the requirement of the applicable rule.

3.2.1 The right to adequate housing

33. The right to housing is protected in numerous international human rights instruments.

34. Article 11 of the ICESCR – which Israel ratified on 3 October 1991 – states:

“The States Parties to the present Covenant recognize the right of everyone to an

adequate standard of living for himself and his family, including adequate food, clothing

and housing, and to the continuous improvement of living conditions… ”.

35. Before considering the right to adequate housing in relation to the inhabitants of Area C, it is

necessary to make the following general comments addressing its interpretation, its

multifaceted nature, and its relationship with other rights.

36. First, with reference to the interpretation of this right, in its General Comment on the right to

adequate housing, the ESCR Committee stated:

“In the Committee's view, the right to housing should not be interpreted in a narrow

or restrictive sense which equates it with, for example, the shelter provided by merely

having a roof over one's head or views shelter exclusively as a commodity. Rather it

should be seen as the right to live somewhere in security, peace and dignity. This is

appropriate for at least two reasons. In the first place, the right to housing is

14

integrally linked to other human rights and to the fundamental principles upon which

the Covenant is premised. This "the inherent dignity of the human person" from

which the rights in the Covenant are said to derive requires that the term "housing"

be interpreted so as to take account of a variety of other considerations, most

importantly that the right to housing should be ensured to all persons irrespective of

income or access to economic resources. Secondly, the reference in article 11 (1)

must be read as referring not just to housing but to adequate housing. As both the

Commission on Human Settlements and the Global Strategy for Shelter to the Year

2000 have stated: "Adequate shelter means ... adequate privacy, adequate space,

adequate security, adequate lighting and ventilation, adequate basic infrastructure

and adequate location with regard to work and basic facilities - all at a reasonable

cost”.18

37. Second, with reference to its nature, this right – as with many others – does not impose a

unitary obligation on states; rather it is made up of a number of different freedoms and

entitlements, each of which create different obligations for states.

38. According to the United Nations High Commissioner for Human Rights, the right to adequate

housing includes at least four entitlements: (i) Security of tenure; (ii) Housing, land and

property restitution; (iii) Equal and non-discriminatory access to adequate housing; (iv)

Participation in housing-related decision-making at the national and community levels. In

addition, it contains at least three freedoms: (i) Protection against forced evictions and the

arbitrary destruction and demolition of one’s home; (ii) The right to be free from arbitrary

interference with one’s home, privacy and family; and (iii) The right to choose one’s

residence, to determine where to live and to freedom of movement.19

18

CESCR, General Comment 4, The right to adequate housing, (Art. 11 (1) of the Covenant), (Sixth session, 1991), para 7. 19

OHCHR, Fact Sheet 21: The Right to Adequate Housing, p. 3

15

39. Finally, the right to adequate housing must be considered in terms of its relationship to other

rights – civil and political, and economic, social and cultural. As the ESCR Committee went

on to note in General Comment 4:

“[T]he right to adequate housing cannot be viewed in isolation from other human rights

contained in the two International Covenants and other applicable international

instruments. Reference has already been made in this regard to the concept of human

dignity and the principle of non-discrimination. In addition, the full enjoyment of other

rights - such as the right to freedom of expression, the right to freedom of association

(such as for tenants and other community-based groups), the right to freedom of

residence and the right to participate in public decision-making - is indispensable if the

right to adequate housing is to be realized and maintained by all groups in society.

Similarly, the right not to be subjected to arbitrary or unlawful interference with one's

privacy, family, home or correspondence constitutes a very important dimension in

defining the right to adequate housing.”20

40. Against this backdrop we now consider the right to adequate housing, and Israel’s obligations

thereunder, as it applies to the inhabitants of Area C. In doing so we submit that Israel is

under an obligation to allow the Palestinian inhabitants of Area C to participate in the

planning process in respect of housing and related livelihood constructions both as: (a) an

entitlement of the right to adequate housing, and (b) as an indirect obligation based on the

requirement to provide security of tenure by virtue of that right.

41. Notably there are difficulties unique to the application of economic, social and cultural rights

to extraterritorial armed conflicts. As Lubell notes:

“[W]hen it comes to implementing ESC human rights obligations in situations to

which IHL is applicable, for instance in occupied territory, there are obviously

20

CESCR, General Comment 4, para 9.

16

difficulties as regards derogation and level of fulfillment which need to be

addressed.”21

42. However, while certain aspects of the right to housing are subject to progressive realization,

others are “obligations of immediate effect”. We will argue that both the obligation to allow

participation in planning and security of tenure are of the latter form of obligation.

3.2.2 The right to participate as an entitlement of the right to adequate housing

43. As explained above, in General Comment 4 the ESCR Committee explicitly linked the right

to adequate housing and the right to participate in public decision-making contained in article

25 of the ICCPR, noting:

“[T]he full enjoyment of other rights – such as the right to freedom of expression, the

right to freedom of association … the right to freedom of residence and the right to

participate in public decision making – is indispensable if the right to adequate

housing is to be realized and maintained by all groups in society.” (emphasis added).

44. Both the Human Rights Council, and its predecessor the Commission on Human Rights, have

on numerous occasions encouraged states, in the fulfillment of the right to housing as part of

the adequate standard of living, to “promote participation in decision making processes and

inclusion of relevant stakeholders in the planning stage of urban development, in particular

at the local level, when developing an adequate standard of living and housing”.22

21

Lubell, Noam, “Challenges in Applying Human Rights Law to Armed Conflict”, 860 International Review of the Red Cross, 2005, p. 753, 22

‘Adequate housing as a component of the right to an adequate standard of living’, Human Rights Council Resolution 6/27, para. 4(e) ‘Adequate housing as a component of the right to an adequate standard of living’, Commission on Human Rights resolution 2004/21, para. 3(d)(ii) ‘Adequate housing as a component of the right to an adequate standard of living’, Commission on Human Rights resolution 2003/27, para. 11(e)(ii)

17

45. According to the United Nations High Commissioner for Human Rights, the right to adequate

housing includes the entitlement to participate in housing-related decision-making at the

national and community levels.

46. In addition, the Human Rights Council (and the Commission) has also consistently urged

States to “promote residential social inclusion of all members of society at the planning

stage of urban and rural development schemes and other human settlements, while

renewing neglected areas of public housing, so as to counter social exclusion and

marginalization”.23

47. For these reasons we are of the view that the participation of affected individuals in planning

and decision-making processes is an accepted component of the international human right to

housing.

48. To determine the parameters of this right (and the concomitant obligation on Israel) requires

an appreciation that the right to housing – as with all socio-economic rights – is subject to

progressive realization. Article 2(1) of the ICESCR states:

“Each State Party to the present Covenant undertakes to take steps, individually and

through international assistance and co-operation, especially economic and technical, to

the maximum of its available resources, with a view to achieving progressively the full

realization of the rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures.”

‘Adequate housing as a component of the right to an adequate standard of living’, Commission on Human Rights resolution 2002/21, para. 10(e)(ii) ‘Adequate housing as a component of the right to an adequate standard of living’, Commission on Human Rights resolution 2001/28, para. 10(e)(ii) 23

‘Adequate housing as a component of the right to an adequate standard of living’, Commission on Human Rights resolution 2004/21, para. 3(d)(iii), emphasis added. ‘Adequate housing as a component of the right to an adequate standard of living’, Commission on Human Rights resolution 2003/27, para. 11(e)(iii) ‘Adequate housing as a component of the right to an adequate standard of living’, Human Rights Council Resolution 6/27, para. 4(f)

18

49. However, in General Comment 3 the ESCR Committee noted that “while the Covenant

provides for progressive realization and acknowledges the constraints due to the limits of

available resources, it also imposes various obligations which are of immediate effect.”

50. Therefore, whilst certain aspects of the right to adequate housing are subject to progressive

realization, others are considered to be obligations of immediate effect.24

51. In this vein as a matter of construction, and logic, the participatory entitlement of the right to

housing is not an aspect subject to progressive realization, but is rather an ‘obligation of

immediate effect’. We say so for the following reasons.

52. A parallel can be drawn between the participatory entitlement of the right to adequate

housing and the protective aspect thereof relating to forced evictions;25

the latter being an

“obligation of immediate effect”.

53. First, neither of the two aspects of the right to adequate housing are resource dependant. As

the ESCR Committee held in the case of forced evictions: “in view of the nature of the

practice of forced evictions, the reference in article 2(1) to progressive achievement based on

the availability of resources will rarely be relevant”. The same is arguably true insofar as the

participatory aspect of this right is concerned; at the very least to promote participation in

decision-making processes and inclusion of relevant stakeholders in the planning stage of

urban development will not require significant resources.

54. Second, just as the protection against forced evictions is considered to be complemented by

the unqualified right contained in article 17(1) of the ICCPR against arbitrary interference

24

CESCR, General Comment 3, para. 1. 25

General Comment 7 notes: “The term ‘forced evictions’… is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights.” CESRC, General Comment 7, The right to adequate housing (Art. 11 (1) of the Covenant): forced evictions, U.N. Doc. E/C.12/1997/4 (1997), para. 3.

19

with one’s privacy, home or family, the participatory element of the right to housing is

complemented by the unqualified right to public participation contained in article 25 of the

ICCPR.26

55. As a matter of logic, the “steps towards” the complete fulfillment of the right to adequate

housing must begin with the correct planning procedure, which necessarily involves the

participation of the affected communities at the very earliest stages of the process. The right

to participation, it will be recalled, is inherently designed “so as to counter social exclusion

and marginalization”. For such exclusion or marginalization to be countered the right needs

necessarily to be immediately implementable. Recourse to the notion of “progressive

realization” to curtail such immediate participation or inclusion would undermine the essence

of the right.

56. The next question then is whether the right to housing – and this particular entitlement –is

applicable to the situation at present, or whether it is displaced by the lex specialis, IHL. In

the Wall Opinion the ICJ held that the rights applicable to Israel’s occupation included the

right to adequate housing. Although the Court did not specify which aspects of that right

applied to the occupied territories, it did find that “the construction of the wall would

effectively deprive a significant number of Palestinians of the "freedom to choose [their]

residence". It also considered the protection against arbitrary interference in one’s home,

privacy or family life as applicable to the occupied territories.27

57. These, as noted above, are two of the freedoms that comprise the right to adequate housing,

along with inter alia the protection against forced evictions and the entitlement of

participation in housing-related decision-making at the national and community levels. If,

as argued above, all four of these aspects of the right to adequate housing are obligations of

immediate effect, then it stands to reason that all of them must immediately be applicable in

times of armed conflict or occupation.

26

CESCR, General Comment 7, para. 8. 27

ICJ, Wall Opinion, paras. 127-128 & 133.

20

58. What is more, as we argued above, the most coherent approach is to consider whether there is

a “special rule of the law of armed conflicts” that applies to a given situation, and which

therefore displaces the general human rights law applicable. There is nothing to suggest that

this is the case in respect of the participatory entitlement of the right to adequate housing. In

fact, under the law of occupation Israel is obliged to limit its impact on the local

administrative regime save for that which is required to maintain public order, protect its

legitimate military interests or comply with IHL.

59. The final, and most straightforward, task is to measure Israel’s conduct against the applicable

law in order to determine if it has met its requirements under IHR in respect of the right to

adequate housing. In our view MO418 does not come close to what is required under the

right in terms of participation – precisely because, so we are advised, both by design and

effect it limits such participation.

3.2.3 Participation as an indirect obligation flowing from the security of tenure

60. In addition, or in the alternative, Israel is obliged to facilitate the participation of residents of

Area C in the planning process for housing as part of its obligation to provide them with

security of tenure. This is because in addition to the direct violation of the right to adequate

housing by forced evictions and demolitions in the OPT – as found by the Human Rights

Committee – the failure to allow meaningful participation of local residents in the planning

process indirectly violates the right to housing of those residents by making eviction highly

probable, and hence undermining their security of tenure.

61. As noted earlier, according to the ESCR Committee the right to adequate housing “should

not be interpreted in a narrow or restrictive sense” but includes a number of aspects,

including the legal security of tenure. The importance of this aspect of the right to adequate

housing is demonstrated by the fact that it is subject to its own General Comment.

21

62. In this respect General Comment 7 – ‘The right to adequate housing (art. 11(1) of the

Covenant): ‘forced evictions’ – states:

“[T]he obligations of States parties to the Covenant in relation to forced evictions are

based on article 11(1), read in conjunction with other relevant provisions. In particular,

article 2(1) obliges States to use "all appropriate means" to promote the right to

adequate housing. However, in view of the nature of the practice of forced evictions, the

reference in article 2(1) to progressive achievement based on the availability of

resources will rarely be relevant. The State itself must refrain from forced evictions and

ensure that the law is enforced against its agents or third parties who carry out forced

evictions (as defined in paragraph 3 above). Moreover, this approach is reinforced by

article 17(1) of the International Covenant on Civil and Political Rights which

complements the right not to be forcefully evicted without adequate protection. That

provision recognizes, inter alia, the right to be protected against "arbitrary or unlawful

interference" with one's home. It is to be noted that the State's obligation to ensure

respect for that right is not qualified by considerations relating to its available

resources.”28

63. In July 2010, the Human Rights Committee stated:

“[T]he Committee is concerned at frequent administrative demolition of property, homes

and schools in the West Bank and East Jerusalem owing to the absence of construction

permits, their issuance being frequently denied to Palestinians….

The Committee reiterates that [Israel should]… review its housing policy and issuance of

construction permits with a view to implementing the principle of non-discrimination

regarding minorities, in particular Palestinians, and to increasing construction on a

legal basis for minorities of the West Bank and East Jerusalem.”

28

CESCR, General Comment 7, para. 8.

22

64. Although the Committee was concerned with violations of the ICCPR by Israel’s conduct, it

is clear that the current regime considerably undermines Palestinians’ security of tenure. It

follows necessarily in our view that without adequate participation of local inhabitants in the

planning procedure for housing in Area C, they cannot enjoy any meaningful security of

tenure.

65. Arguably, the systematic, indirect violation of the right to security of tenure in this manner is

more serious than individual cases of direct violations thereof, as it condemns individuals to

a cycle of repeated evictions without giving them an opportunity to bring their homes and

dwellings within their legal framework by precluding them from participating in its

delineation in order to make it reflect their needs and wants.

66. Because security of tenure is an ‘entitlement’ of the right to housing that is of immediate

effect, therefore the constructive denial of security of tenure in these circumstances amounts

to a violation of the right to adequate housing.

67. Consequently, in our view, MO418 clearly does not meet the requirement of providing

security of tenure as it removed local planning committees in local councils of Palestinian

villages and district planning committees in the West Bank (later to be applicable only to

Area C after the Oslo Accords) and indirectly prevents the secure construction of homes and

heightens the risk of arbitrary eviction.

3.2.4 Interference with privacy, family, home or correspondence

68. Furthermore, or in the alternative, the current planning system, as such, also violates article

17 of the ICCPR, which protects individuals from “arbitrary or unlawful interference with

[their] privacy, family, home or correspondence…”.

69. In General Comment 4 the ESCR Committee stated:

23

“[T]he right not to be subjected to arbitrary or unlawful interference with one’s privacy,

family, home or correspondence constitutes a very important dimension in defining the

right to adequate housing.”29

70. Further, in General Comment 16 the Human Rights Committee stated:

“The expression "arbitrary interference" is also relevant to the protection of the right

provided for in article 17. In the Committee's view the expression "arbitrary

interference" can also extend to interference provided for under the law. The introduction

of the concept of arbitrariness is intended to guarantee that even interference provided

for by law should be in accordance with the provisions, aims and objectives of the

Covenant and should be, in any event, reasonable in the particular circumstances.”30

71. Therefore, even if it were to be concluded that the current ICA planning policy is lawful (i.e.

provided for under law), the planning system in its current form is arbitrary as it does not

take account of the individuals who are designed to benefit from it and hence cannot

plausibly be “reasonable in the particular circumstances”.

72. We are affirmed in our view by the ICJ’s judgment in the Wall Opinion:

“The Court notes that [Israel’s] derogation… concerns only Article 9 of the International

Covenant on Civil and Political Rights, which deals with the right to liberty and security

of person and lays down the rules applicable in cases of arrest or detention. The other

Articles of the Covenant therefore remain applicable not only on Israeli territory, but

also on the Occupied Palestinian Territory. Among these mention must be made of

29

29

CESCR, General Comment 4, para. 9. 30

HRC, General Comment 16, para. 4.

24

Article 17, paragraph 1 of which reads as follows: ‘No one shall be subjected to

arbitrary or unlawful interference with his privacy, family, home or correspondence,

nor to unlawful attacks on his honour and reputation.’”31

3.2.5 The right to equality

73. The current planning system also violates the right to equality and equal treatment before the

law guaranteed in article 2(1) of the ICCPR and article 2(2) of the ICESCR.

74. These provisions enjoin states to “guarantee that the rights enunciated in the present

Covenant… without discrimination of any kind as to race, colour, sex, language, religion,

political or other opinion, national or social origin, property, birth or other status.”

75. With regard to the anti-discrimination provision in the ICESCR, the ESCR Committee

considered this too to be an “obligation of immediate effect”.32

76. Further, in General Comment 20, the ESCR Committee noted:

“Non-discrimination is an immediate and cross-cutting obligation in the Covenant.

Article 2, paragraph 2, requires States parties to guarantee non-discrimination in the

exercise of each of the economic, social and cultural rights enshrined in the Covenant

and can only be applied in conjunction with these rights. It is to be noted that

discrimination constitutes any distinction, exclusion, restriction or preference or other

differential treatment that is directly or indirectly based on the prohibited grounds of

discrimination and which has the intention or effect of nullifying or impairing the

recognition, enjoyment or exercise, on an equal footing, of Covenant rights.”33

31

ICJ, Wall Opinion, paras. 127-128. 32

CESCR, General Comment 3, The nature of States parties obligations, (Art. 2, para. 1 of the Covenant), (Fifth session, 1990), para. 1 33

CESCR, General Comment 20, Non-discrimination in economic, social and cultural rights, E/C.12/GC/20, 2 July 2009, para. 7

25

77. Our instructions are that under the current system, Israeli settlers are afforded special

planning committees with local representation. In contrast, there is a complete absence of

local representation for Palestinians following the abolition of the local (in villages) and

district planning committees and inadequate representation in the alternative planning

institutions established by the Israeli military commander and the ICA. The alternative Israeli

model for planning for Palestinians in Area C has de facto created two separate planning

regimes – one for Palestinians and one for Israeli settlers. Palestinians and Israeli settlers do

not share the same district committee. Furthermore, Special Local Committees are designed

not only to serve settlers but specifically exclude Palestinian villages (article 2A(a)(2) MO

418).

78. Irrespective of the different ‘legal status’ of those two populations groups, the planning

structure established by MO 418 amounts to direct and unlawful discrimination against the

Palestinians in Area C.

79. The model created is therefore a “separate and unequal” model that favours by definition

participation of Israeli settlers in ‘their’ planning procedure and denies, again, by definition,

participation of Palestinians in the parallel planning track. The distinction between the two

populations in terms of local representation cannot amount to relevant factor as the right to

equality in the planning process is unqualified.

80. What is more, we are advised that statistics show that planning policies of Israeli-initiated

planning institutions are discriminatory. For example, of the average 241 requests for

building permits which are submitted yearly, on average only 13 are approved per year. A

staggering 94% of Palestinian applications submitted to Israeli authorities for building

permits in Area C between January 2000 and September 2007 were denied.34

34

Benvenisti, ‘The West Bank Data Project: A survey of Israel’s Policies’ 37 (1984) at 28. OCHA Special Focus Occupied Palestinian Territory (2008) ‘”Lack of Permit” Demolitions and Resultant Displacement in Area C’, United Nations Office for the Coordinations of Humanitarian Affairs, May at 1.

26

81. In July 2010, the Human Rights Committee, while re-iterating its previous concern regarding

the demolition of suspected terrorist’s homes “without considering other less intrusive

measures”, added:

“[T]he Committee is concerned at frequent administrative demolition of property, homes

and schools in the West Bank and East Jerusalem owing to the absence of construction

permits, their issuance being frequently denied to Palestinians. Furthermore, it is

concerned at discriminatory municipal planning systems, in particular in “area C” of

the West Bank and in East Jerusalem, disproportionately favouring the Jewish

population of these areas (arts. 7, 17, 23 and 26).”35

82. On this basis the Committee recommended that Israel “review its housing policy and

issuance of construction permits with a view to implementing the principle of non-

discrimination regarding minorities, in particular Palestinians, and to increasing

construction on a legal basis for minorities of the West Bank and East Jerusalem”, and

“ensure that municipal planning systems are not discriminatory”.36

3.2.6 Right to representation

83. Finally, the failure to allow Palestinians living in Area C to participate meaningfully within

the planning process in this regard could also be construed as a violation of the right to

representation under article 25 of the ICCPR.

84. Article 25 of the ICCPR states:

Every citizen shall have the right and the opportunity, without any of the distinctions

mentioned in article 2 and without unreasonable restrictions:

35

HRC, Concluding Observations: Israel, Ninety-ninth session,Geneva, 12–30 July 2010, CCPR/C/ISR/CO/3, para. 17. 36

HRC, Concluding Observations: Israel, Ninety-ninth session,Geneva, 12–30 July 2010, CCPR/C/ISR/CO/3, para. 17

27

(a) To take part in the conduct of public affairs, directly or through freely chosen

representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal

and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of

the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

85. Although much of the focus has been on the election-based elements of this right, it also

includes the “right to take part in public affairs, directly or through freely chosen

representatives”.

86. In General Comment 25, of 12/07/96 (CCPR/C/21/Rev. 1/Add. 7) the Human Rights

Committee noted (at para. 5):

“The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates

to the exercise of political power, in particular the exercise of legislative, executive and

administrative powers. It covers all aspects of public administration, and the formulation and

implementation of policy at international, national, regional and local levels. The allocation

of powers and the means by which individual citizens exercise the right to participate in the

conduct of public affairs protected by article 25 should be established by the constitution and

other laws.”

87. In Marshall v Canada (Communication No. 205/86), the HRC elaborated on the “scope of

the right of every citizen, without unreasonable restrictions, to take part in the conduct of

public affairs, directly or through freely chosen representatives”. While the Committee took a

narrow interpretation of this right,37

it also noted that “[i]t must be beyond dispute that the

37

The Committee noted (at paragraph 5.4): “Surely, it cannot be the meaning of article 25(a) of the Covenant that every citizen may determine either to take part directly in the conduct of public affairs or to leave it to freely chosen representatives. It is for the legal and constitutional system of the State party to provide for the modalities of such participation”.

28

conduct of public affairs in a democratic State is the task of representatives of the people,

elected for that purpose, and public officials appointed in accordance with the law”.38

88. Therefore, while the Committee found that “article 25(a) of the Covenant cannot be

understood as meaning that any directly affected group, large or small, has the

unconditional right to choose the modalities of participation in the conduct of public affairs”,

it nevertheless accepted that some form of participation in the conduct of public affairs – by

“representatives of the people” – is an axiom of the right to participation.

89. In this regard Fox notes:39

“Since paragraph (b) requires genuine, periodic elections, paragraph (a) must

contemplate additional means of influencing public policy. However, paragraph (a) does

not identify the types of public bodies to which it applies, and the delegates rejected a

proposal that would have applied to "all organs of authority." Thus, below the primary

leadership level (e.g., the head of state and the legislature), Article 25(a) is satisfied if

appointed officials are "in some way responsible to elected officials."

90. Furthermore, we would argue that this right (in the form set out about) continues to apply in

times of prolonged occupation.

91. The planning activities in question would certainly meet the requirements of “the conduct of

public affairs”, but by no stretch of the imagination are those making the decisions “in some

way responsible to elected officials”. Therefore, the current planning regime might well

violate the right to representation by elected officials.

92. Furthermore, the Committee has on a number of occasions added that this right must be “the

right of every citizen to take part in the conduct of public affairs without discrimination and

38

At paragraph 5.5. 39

Fox, ‘The Right to Political Participation in International Law’, Yale Journal of International Law Summer 1992, p. 555.

29

without unreasonable restrictions”.40

In Joszef Debreczeny v. the Netherlands

(Communication No: 500/1992), it noted:41

“The Committee notes that the right provided for by article 25 is not an absolute right

and that restrictions of this right are allowed as long as they are not discriminatory or

unreasonable.”

93. In General Comment 25, the HRC noted (at para. 4):

“Any conditions which apply to the exercise of the rights protected by article 25 should

be based on objective and reasonable criteria. For example, it may be reasonable to

require a higher age for election or appointment to particular offices than for exercising

the right to vote, which should be available to every adult citizen. The exercise of these

rights by citizens may not be suspended or excluded except on grounds which are

established by law and which are objective and reasonable. For example, established

mental incapacity may be a ground for denying a person the right to vote or to hold

office.”

94. Therefore, in addition to violating article 2(1) of the ICCPR and article 2(2) of the ICESCR,

the differentiated planning regimes applicable to Jewish and non-Jewish residents of Area C

would arguable violate article 25(a) of the ICCPR in that they are discriminatory limitations

on the right to participation.

4. Conclusion

95. For these reasons we are of the view that as a matter of international human rights law Israel

is obliged to allow Palestinian residents of the West Bank – and Area C in particular – to

participate meaningfully in the planning processes relating to their community’s housing

40

At paragraph 5.6. 41

At paragraph 9.2.

30

needs. Articles 2(2) and 2(4) of MO 418 deny both by design and impact such meaningful

participation.

Max du Plessis

Christopher Gevers

Electronically signed

15 October 2012

Durban and Oxford