Palestinian
Undertakings to Respect Human Rights - Basic Sources
By Professor Irwin Cotler, McGill
University/InterAmicus
Palestinian Undertakings to Respect Human Rights - Basic Sources
Public undertakings by the Palestinian Authority to respect human rights
are organized around and find expression in five basic sources: First,
undertakings made to human rights NGO's such as Amnesty International;
second, public decrees and declarations made by the PA undertaking to
comply with human rights norms; third, provisions of the Oslo Accords
obliging both parties to comply with "internationally accepted norms and
principles of human rights and the rule of law;" fourth, undertakings
under the draft Palestinian Authority Basic Law; and finally,
responsibilities under International human rights law and Humanitarian
Law. One introductory point - and a not unimportant juridical observation
- and it is this: Israel remains accountable under International Human
Rights Law for any violations of Palestinian rights in areas under its
jurisdiction; as well, the legal status of the West Bank and Gaza Strip
has not formally changed - sovereignty has not yet passed over to the PA.
in a word, the PA may be said to be sharing a form of "condominium"
relationship with Israel - and with Israeli still retaining the ultimate
authority and responsibility for the territories until the formal and
legal termination of its mandate as the occupying power.
But the PA is now also responsible under international human rights law
for human rights violations within its effective authority and control,
i.e., for the welfare and well-being of the 2.2 million Palestinian
inhabitants of Gaza and the seven populated cities of the West Bank; as
well, Palestinians now control the main institutions responsible for the
well-being of Palestinians under the Palestinian Authority - the courts,
the prison systems, the civil service administration, and the vast
security apparatus - as well as exercising the powers governing the daily
lives of Palestinians under the Palestinian Authority - education, health,
social services, and the like.
Accordingly, the Palestinians and the international community can
legitimately expect the PA to adhere to international undertakings to
repeat human rights - the whole anchored in the set of five undertakings
assumed by the PLO and the PA itself.
A. Public Undertakings to Human
Rights NGO's.
The PA and the PLO - to their credit - have
issued a number of statements and declarations through Chairman Arafat and
other PLO leaders acknowledging their undertaking to abide by
international human rights norms, and to incorporate these norms into
domestic Palestinian law. Indeed, as will be seen below, the most recent
draft of the "Basic Law on the Palestinian Authority" contains an express
commitment to international human rights law.
For example, on October 2, 1993, a delegation from Amnesty International
was advised by Chairman Arafat that the PLO had undertaken to respect all
internationally recognized human rights standards, and would be
incorporating them in domestic Palestinian law. AS well, Arafat also
acknowledged the important role of Palestinian international human rights
organizations in promoting and protecting human rights. In a statement
characteristic of those that Chairman Arafat has made since the signing of
the Israeli-PLO Agreement, he gave clear and explicit public expression to
the Palestinian undertakings to respect human rights as well as to protect
the work of human rights NGO's - and to the building of a democracy
founded on the rule of law -and the whole contained in the following radio
broadcast of December 31, 1993.
"We want the Palestine that is being revised anew to be.. democratic, an
oasis in which our people will enjoy freedom, democracy, political
pluralism, security and safety, the independence of the judiciary, the
preservation of public freedoms, stability, prosperity, human rights and
equality between men and women."
B. PLO Decrees and Declarations
Shortly after the entering into effect of the
Israel-PLO Declaration of Principles - and the commitment therein by the
PLO to renounce terror and respect human rights - the PLO issued a decree
in Tunis on October 30, 1993 reaffirming its commitment to the promotion
and protection of human rights.
More importantly and more recently, in the course of discussions between
Chairman Arafat's Advisor on Human Rights Abou Degga, and McGill law
professor and InterAmicus President Irwin Cotler, Abou Degga reaffirmed
the Palestinian Authority's commitment to respect human rights, and made
particular reference to the commitments in the Basic Law of the
Palestinian Authority in that regard. He also invited the assistance of
human rights NGO's such as InterAmicus, the McGill based Human Rights
Advocacy Center to facilitate the education and training of Palestinian
human rights officials in the appreciation and implementation of these
international human rights standards so as to develop a Palestinian
"culture of human rights." Similar expressions were made by Palestinian
Ministers in meetings with the InterAmicus President, and have also found
expression in the "Rule of Law Assistance Project" as agreed to between
the Palestinian Authority and the Australian based human rights NGO -
Australian International Legal Resources Inc.
C. Article XIV of the
Israel-PLO Gaza-Jericho Agreement and Human Rights Undertakings under the
Oslo Accords
Although human rights undertakings by both the
Palestinian Authority and Israel have been somewhat obscured or deflected
in the rhetoric respecting the "peace process", it should not be forgotten
that both the Palestinian Authority and Israel undertook to respect human
rights as an integral part of the peace agreements themselves.
Accordingly, Article XIV of the Gaza-Jericho Agreement states that "Israel
and the PA 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." Further commitments are
made in annexes to the Agreement. For example, with regard to suspects
transferred to Israeli and Palestinian custody or vice versa, both sides
agree to "take all necessary measures to ensure that the treatment of
individuals transferred under this Article complies with...
internationally accepted norms of human rights regarding criminal
investigations" (Annex III, Article II, paragr. 7.h.). With regard to
regulations on the use of force, "the security and public order personnel
of both sides shall exercise their powers and responsibilities pursuant to
this Agreement with due regard to internationally accepted norms of human
rights and the rule of law, and shall be guided by the need to protect the
public, respect human dignity and avoid harassment." (Annex I, Article
VIII, paragr. 1.)
D. Undertakings in the Draft
Palestinian Authority Basic Law
The Fourth Draft of the Palestinian Authority
Basic Law - the culmination of years of deliberations in which, as the
Preamble itself puts it, "a great number of people and institutions have
democratically participated in," is replete with provisions promotive and
protective of fundamental human rights and adherence to international
human rights norms. The following is a sampler of some of these
undertakings in the draft Palestinian Authority Basic Law. In particular,
note should be taken of the undertaking in Article 8, respecting human
rights and freedoms as set forth in international treaties, and which
conclude with the words, "Palestinian authorities shall adhere to the said
international agreements."
Article 11
Palestine recognizes and respects the fundamental
human rights and freedoms prescribed in the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial
Discrimination, the Conventions and Covenants which secure such rights and
freedoms. Palestinian authorities shall adhere to the said international
agreements.
Article 12
Every person has the right to liberty and
security of person. No person shall be subjected to arbitrary arrest or
detention. No person shall be deprived of his liberty except on such
grounds and in accordance with such procedures as are established by law.
Article 13
All persons are equal in human dignity. No person
shall be subjected to torture or to cruel, inhuman or degrading
punishment. In particular, no person shall be subjected without his free
consent to medical or scientific experimentation. No effect shall be given
to any statement or confession obtained as a result or under the threat of
torture, cruel, inhuman or degrading treatment.
Article 23
Subject to the provisions of Article 14 of this
Basic Law, the freedom of the press, printing, publication and media is
guaranteed. Censorship of the press is prohibited, and no newspaper shall
be subject to warning, suspension or termination through governmental or
administrative action.
Article 37
All Palestinian authorities and organs as well as
all individuals and persons in Palestine shall be subject to the law and
shall be accountable for its violation. The independence of the judiciary,
its immunity, respect for and execution of its decisions are basic
guarantees for the protection of rights and freedoms and the establishment
of the rule of law.
E. Responsibility Under
Customary International Human Rights Law and Humanitarian Law
Although the Palestinian Authority does not have
the character of an independent state - and cannot therefore be a State
Party to international treaties - it is a responsible body incurring
obligations under both international human rights law and international
humanitarian law. More particularly, the Palestinian government does
exercise "state-like" power and authority within its jurisdiction under
the May 1994 (Cairo Agreement) and September 1995 (Oslo II) Interim
Agreements, which transferred to the Palestinian Authority both a wide
array of powers - and effective responsibility - for the welfare and
security of 2.2 million Palestinians.
Indeed, the humanitarian and customary human rights norms applicable to
the Palestinian Authority (and for which the Draft Palestinian Authority
Basic Law under Article 8 assumes systematic responsibility) includes
express provisions respecting the rights of detainees to human treatment,
non-discrimination and legal protection, the whole as set forth more fully
in the article on "Palestinian Responsibility under International Human
Rights Law and Humanitarian Law: Qumsieh and the rights of Detainees as a
Case Study."
rth more fully in the article on "Palestinian
Responsibility under International Human Rights Law and Humanitarian Law:
Qumsieh and the rights of Detainees as a Case Study." |
