Introduction
By their very nature, human rights should apply universally. Human rights are those rights which should apply to all people in virtue of the fact that they are human beings. In the contemporary world that such rights exist is ‘almost universally accepted…all states regularly proclaim their acceptance of and adherence to international human rights norms’ and ‘three quarters of the world’s states have undertaken international legal obligations to implement these rights by becoming parties to the International Human Rights Covenants’ (Donnelly, 2003).
In signing the Universal Declaration of Human Rights: ‘Member states have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms’ (UDHR, 1948). The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights developed the rights enshrined in the UDHR making them effectively binding on the States that have ratified them. ‘By becoming parties to international treaties, states assume obligations and duties under national law to respect, to protect and to fulfil human rights’. The obligation to respect means that ‘States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups from human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights’ (UN.org).
Despite the commitments made by states across the globe, it is not difficult to find examples to illustrate the fact that such commitments are frequently reneged. Significant numbers of people are consistently denied the rights to which it has been internationally agreed that they are entitled. Currently, with regard to human rights and the equal status of human beings that underpins them- it seems, to paraphrase Orwell- that all men are created equals yet ‘some are more equal than others’. The extent to which serious human rights violations provoke international reaction is dependent on the parties involved. This uneven application of human rights standards has a detrimental impact on the status of ‘human rights’ as universal, as well as the international institutions that are supposed to uphold and enforce them.
To a great extent the power and status of law is dependent on how effectively it is enforced. Consequently it can be argued that when human rights are breached and effective action is not taken, the status of human rights legislation- as well as the UN as a force for protecting them- is diminished. That the current international human rights system is significantly limited in its enforcement capacity is a much discussed subject. Many argue that states that fail to take seriously their obligation both to refrain from curtailing human rights and to facilitate the enjoyment of basic human rights face no meaningful reproach for their actions. It is certainly the case, as is reflected by the numerous human rights breaches that occur daily, that the current international system by no means perfectly protects universal human rights. Human rights legislation and the UN offer limited protection against rights violations.
This report will examine the state of human rights in Gaza. It will first establish the legal responsibility of Israel regarding the people of Gaza. Secondly it will seek to demonstrate that the fundamental human rights of the Gazan people are violated as a direct result of Israeli action. Finally it will look at the way in which the UN and the international community more generally have reacted to the situation and the broader political implications of that reaction related to Israel’s non compliance.
Part 1: Israel’s legal responsibility
International Law
Israel has long attempted to absolve themselves of responsibilities regarding the rights of the Palestinian people. On 12 September, 2005, Israel completed its disengagement plan by removing Israeli settlements and evacuating permanent military installation from Gaza. (Bashi and Mann, 2007). The Israeli government stated that implementation of the plan would ‘invalidate the claims against Israel regarding its responsbility for the Palestinians in the Gaza strip’. The Israeli State Attorney’s Office argued that, ‘with the termination of the military government in the Gaza Strip, Israel has no obligation whatsoever under international law toward residents of Gaza’ (btselem.org). This argument is completely unsubstantiated; both under international humanitarian law and international human rights law Israel’s continuing obligation to the Palestinian residents of Gaza has a number of sources.
Most obvious is the law of occupation incorporated in the Hague Convention (1907) and in the Fourth Geneva Convention (1949). Under international humanitarian law the 4th Geneva Convention is the primary legal document which should govern the occupied Palestinian territory and the behaviour of the Occupying Power. Whilst Israel has not recognised the applicability of the Convention to the OPT- all other states have done so. In addition Israel maintains a commitment to the Hague Regulations of 1907 which states that the laws of occupation apply to ‘belligerent parties’. Common Article 2 of the Geneva Convention states that the Convention shall apply: …in peacetime…to all cases of declared war or of any other conflict which may arise between two or more of the High Contracting Parties…The Convention shall also apply to cases of total or partial occupation of the territory of the a High Contracting Party (Fourth Geneva Convention, Article 2).
Israel have attempted to deny their responsibility to uphold rights in Gaza arguing that, following disengagement Israel no longer constitutes an occupying or belligerent force and thus is no longer bound by international laws in the area. However under article 42 of the Hague Regulations what triggers the application of the law of occupation is the establishment by a hostile power of its ‘effective control’ over a foreign territory and its population. In order to maintain such control however, the Occupying Power is not required to keep its troops permanently stationed in the occupied territory (Al-Haq.org). Under the Disengagement Plan Israel retained its control over the perimeter of Gaza, its air space and sea. The plan also included reiteration of Israel’s ‘right to self-defence, both preventative and reactive’. As B’tselem have argued, ‘the broad scope of Israeli control in the Gaza Strip, which exists despite the lack of a physical presence of IDF soldiers in the territory, creates a reasonable basis for the assumption that this control amounts to ‘effective control’, such that laws of occupation continue to apply’ (b’tselem.org).
Furthermore, international humanitarian law infers responsibilities on Israel which apply regardless of whether Israel’s control of Gaza constitutes an occupation; IHL is not limited to protecting civilians living under occupation- it also includes provisions to protect civilians during an armed conflict. Given that Israel contends that an armed conflict exists between it and the Palestinian organisations fighting against it, which has continued after the disengagement, the provisions of international humanitarian law apply. Article 3 of the Geneva Convention, infers on Israel the obligation to protect the wounded, sick, children and pregnant women, to enable the free passage of medicines and essential foodstuffs, and refrain from imposing collective punishment (b’tselem.org).
A further source of Israeli obligation to the people of Gaza is international human rights law. The UDHR and the subsequent covenants adopted by the UN have been ratified by Israel. Each party to the convention is bound to ‘strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction (UDHR, 1948).
Following on from the above assertion- that Israel’s control over Gaza constitutes Occupation- under international human rights law, Israel- as the Occupying Power in the Gaza Strip- ‘is not only required to respect the rights of the local population, but must also secure respect for these rights by protecting the population from violations perpetrated by governmental and non-governmental authorities. This positive duty includes obligations to protect a range of international human rights, enshrined in the treaties that Israel has ratified, which require it to prevent, investigate and repress violations of such rights in Gaza (Al-Haq.org). This conclusion does not detract from the responsibility of the Palestinian authorities since for the purpose of international human rights law, jurisdiction over a given territory may simultaneously be exercised by two or more governmental authorities.
Israel’s legal responsibilities regarding the citizens of Gaza are widely acknowledged by the UN. In September 2011 a group of independent UN experts declared that: ‘Israel, as a State Party to many of the international human rights conventions, continues to bear responsibility for implementing its human rights obligations in the Occupied Palestinian Territory. The International Court of Justice, United Nations human rights treaty bodies and special procedures, and successive High Commissioners for Human Rights have consistently confirmed that international human rights law and international humanitarian law apply concurrently in all of the West Bank and the Gaza Strip’ (Office of the High Commissioner For Human Rights, UN, 2011).
Domestic Agreements
Israel has also made various commitments, over the years, specifically regarding Palestine. The Oslo Accords for instance includes Annex III- A Protocol on Israeli-Palestinian Cooperation in Economic and Development Programs. Under the protocol the two sides were to cooperate on water, electricity, transport and communications, finance, industry and labour and welfare issues. Annex IV included provisions for housing construction, a business development plan and an infrastructure development plan (Oslo Accords, 1993). In 2005 in addition to the ‘Disengagement’ plan in September, Israel also signed The Agreement on Movement and Access in November. The AMA was intended to ‘promote peaceful economic development and improve the humanitarian situation on the ground’ in Gaza. Under the AMA, Rafah was to be opened, crossing points were to operate continuously to facilitate the export of produce from Gaza, and the construction of Gaza’s seaport was permitted to commence. These commitments, of course, proved meaningless once Israel enforced a complete blockade of Gaza in 2007, and then tightened restrictions in 2009: in the name of security and self defence.
Since the start of the blockade, Israel’s commitments regarding Gaza have been limited. On the 20th June 2010 announced a series of measures for ‘easing’ the blockade of Gaza. They are outlined in table 1
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Table 1: Israel’s ‘easing’ measures:
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Imports
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Construction Materials
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Crossing Operation
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Movement of People
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Not mentioned in the 2010 announcement:
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Exports
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Fuel Imports
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Buffer Zone
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The international legislation outlined above, infer on Israel both a negative obligation not to violate the rights of the Palestinian people and a positive obligation to protect Palestinian rights. The section that follows will demonstrate how with regard to Gaza, Israel consistently acts beyond the parameters of international law; as it not only fails to protect the basic rights of Gaza’s residents but systematically violates them. Moreover it shall be seen that Israel has even failed to fulfil the minimal ‘easing measures’ it set out in June 2010, which constitute its central domestic commitment regarding Gaza of recent years.
Part 2: Human Rights in Gaza
As we have seen above: ‘under human rights law and international humanitarian law the people of Gaza, even while living under occupation, have the right to an adequate standard of living, and to the continued improvement of living conditions. This right includes access to:
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Affordable and adequate food, and
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Sufficient quantities of safe, accessible and affordable water, as well as proper sanitation services and facilities.
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And the highest attainable standard of physical and mental health
(UN-Office of the Commissioner for HR, 2011)
For many years however the people of Gaza have been experiencing declining and subsistence standards that are below minimum levels. This report focuses on the violation of the right to an adequate standard of living. This includes, in addition to those rights outlined above, the right to housing which is derived from the right to an adequate standard of living and of ‘central importance for the enjoyment of all economic, social and cultural rights’ (UN Committee on Economic, Social and Cultural Rights, General Comment 4). Other related human rights are included in the examination, including the right to self determination, the right to freedom of movement and the right to education because of their importance for the fulfilment of all other human rights, including the right to an adequate standard of living.
In September 2011, Independent UN experts declared that, “As a result of more than four years of Israeli blockade, 1.6 million Palestinian women, men and children are deprived of their fundamental human rights and subjected to collective punishment; in flagrant contravention of international human rights and humanitarian law…Israel’s siege of Gaza is extracting a human price that disproportionately harms Palestinian civilians.” (UN, Office of the Commissioner for HR, 2011)
The Israeli blockade of Gaza (through the land, air and sea) serves to deny the Gazan people their fundamental human rights. The blockade severely restricts imports and exports, as well as the movement of the people in and out of Gaza, and access to agricultural land and fishing waters. The OCHA (Office for the Coordination of Humanitarian Affairs) for the Palestinian territory declared the Gaza blockade: a ‘denial of basic human rights, in contravention of international law’ (OCHA, 2011).
Despite Israel’s 2010 package of measures to ease the access restrictions it had imposed on Gaza since June 2007, there has been no significant improvement in the lives of the Gazan people. Israel announced their intention to expand commercial crossings and improve access to humanitarian and commercial goods except for any ‘dual-use items’ that could be used for potential military activity against the State of Israel (see table 1). According to figures published in Humanitarian Exchange Magazine, truckloads of imports entering Gaza increased by a monthly average of 66% however this only represents 35% of the amount of imports into Gaza before the imposition of the blockade (AIDA, 2011). The published list of items not permitted into Gaza extends far beyond the international definition of dual-use items and many items absent from the list still require special approval and many of them have not received it (International Federation for Human Rights, 2010). Furthermore the amount of non-food items entering, remains disproportionately low- 40-50% of all imports are non-food, in contrast to the previous 80%. The result has been a severe shortage of, in particular, building materials preventing the building and repair of key infrastructure (AIDA, 2011).
In addition, ‘the planned expansion of commercial crossings did not take effect; rather Karni was closed in March 2011 and only one crossing is open for the import and export of goods’ (WFP, 2011). OCHA statistics confirm that, while the Sufa crossing was opened for 18 days in March/April of 2011 for the delivery of humanitarian consignments of construction materials- since the closure of Karni, the Kerem Shalom has been the only active crossing point between Israel and Gaza (OCHA Gaza Crossings Online Database).
Restrictions on the types and quantities of goods allowed have contributed to the stagnation of the Gazan economy (AIDA, 2011). The ban on the transfer of goods from Gaza to the West Bank or Israel (which prior to the blockade accounted for 95 percent of Gaza’s exports), has had a serious impact on the economy of Gaza: unemployment in the Gaza Strip remains among the highest in the world and real wages have continued to decline every year since Israel imposed a blockade of the area, according to The UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Their report on the economy in Gaza for the second half of 2010 listed the unemployment rate at 45.2 per cent and said real wages have slumped by an estimated 34.5 per cent since the Israelis imposed the blockade in 2007 (UNRWA, 2011).
Photo credit: Karl Schembri/ Oxfam
The Gazan economy is also hindered by the fact that 35% of Gaza’s farmland and 85% of its fishing waters are totally or partially inaccessible due to Israel’s ‘buffer zone’. ‘Agriculture used to provide work for nearly 40 per cent of Palestinians who were employed in formal jobs. Farmers now report that they often rely on the labour of family members rather than the employing additional workers’ (Wright and Robinson, 2010). Similarly, the restriction on fishermen’s access to sea areas beyond three nautical miles from Gaza’s shore has rendered the fishing industry unviable, severely impacting on the livelihoods of those Palestinians dependent on it (OCHA, 2011).
Israeli policy denies the people of Gaza a number of their most basic and fundamental human rights. Of course human rights are ‘interrelated, interdependent and indivisible’ (UDHR, 1948). This is clear when one considers the impact of Israel’s violation of Article 1 of the International Covenant on Economic, Social and Cultural Rights, which states that:
1. ‘All peoples have the right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may people be deprived of its own means of subsistence’. (ICESCR, 1976)
Israel’s restrictions on the Gazan people’s access to their land and seas clearly constitute a breach of this right. As aforementioned the residents of Gaza cannot freely pursue their right to economic development which in turn, impacts on their ability to pursue their social and cultural development. Moreover their inability to farm and fish freely, renders them ‘un-free’ to dispose of their natural wealth and resources and deprives them of their own means of subsistence.
The right to self determination is inextricably linked to the fundamental rights that enable an adequate standard of living. The economic situation and high unemployment derived from the fact the Gazans are deprived of their own means of subsistence, impacts on the Gazan people’s access to their fundamental human right to food The UN Special Rapporteur for food, Olivier De Schutter, has defined the right to food as ‘the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases…to ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear’. (www.srfood.org)
International law explicitly protects the right of all human beings to feed themselves in dignity, either by producing their food or by purchasing it. Yet according to the UN Office for the Coordination of Humanitarian Affairs, currently 54% of Gazans are food insecure. The World Food Programme defines food insecurity as the ‘lack of access to sufficient, safe and nutritious food, which meets dietary needs and food preferences for an active and healthy life’ (WFP.prg). Analysis shows that food insecurity in Gaza is not caused by a lack of available food (even though the variety of food available in the market has at certain times been limited) but rather the poor economic situation in general, which creates problems of affordability for many households and has increased their dependency on humanitarian aid (Wright and Robinson, 2010).
Furthermore, the ‘situation regarding local production contributes to rising prices and difficulties in obtaining certain kinds of food’ (Wright and Robinson, 2010). The December 2009 FAO/WFP report states, ‘local food production would be larger should land, water and other inputs be more accessible’ (WFP/FAO, 2009). The restrictions on local production contributes to ‘overall impoverishment, rising food insecurity, and general dependency on aid of the people of Gaza’ (Wright and Robinson, 2010). 75% of Gazans are currently aid recipients (OCHA, October 2011), a reflection of the fact that their legally enshrined right to feed themselves through the production or purchase of food is not upheld.
In addition to the right to adequate food, international human rights law entails specific obligations on states regarding access to safe drinking water. States are required to ensure everyone’s ‘access to a sufficient amount of safe drinking water for personal and domestic uses, defined as water for drinking, personal sanitation, washing of clothes, food preparation and household hygiene’ (Office of the United Nations High Commissioner for Human Rights, 2010). The Fourth Geneva Convention (1949) states that an occupying power is responsible for maintaining public health and hygiene services in an occupied territory, necessitating the provision of clean water and adequate sanitation’ (EWASH Advocacy Task Force, 2011).
Israel has ignored this responsiblity and moreover, Israeli restrictions actively hinder access to water in Gaza. ‘Israel’s seige of Gaza imposed in 2007, along with the massive damage done during Israel’s ‘Cast Lead’ attack on Gaza during December 2008 and January 2009 have made maintenance of water and wastewater treatment plants virtually impossible’ (AAPER, 2011). The problem is compounded by the shortage of materials and spare parts for the repair and maintenance of water and sanitation facilities caused by the Israeli restrictions on imports into Gaza. Israel’s announcement regarding ‘easing’ of the Gaza blockade in June 2010 included explicit guidelines that ‘the vast majority of materials for construction and rehabilitation of water and sanitation infrastructure awaiting entry should be allowed in’. By February 2011 however, only one quarter to one third had been approved by Israel. Consequently the Gazan people remain without access to adequate water supplies. ‘Due to an intermittent water supply, Gaza residents use an average of 91 litres per day (compared to 280 litres used by Israeli residents for domestic consumption).’ The World Health Organisation says that 100-150 litres are required per capita per day to ensure all health needs are met (WASH, 2011).
The quality of the water available in Gaza is cause for concern. Gaza’s main source of water is the Coastal Aquifer, OCHA research indicates that ‘90-95 percent of water from the aquifer is unfit for human consumption’ (OCHA, 2011). According to the WASH Advocacy Task Force ‘because no building materials are available to develop alternative sources of water, such as desalination plants, the aquifer is being over-pumped by 100 million cubic metres per year’….leading to a fall in the groundwater level and increasing salinisation’ (EWASH Advocacy Task Force, 2011). The Gaza Coastal Municipal Water Utility (CMWU) ‘estimates that the segment of the aquifer to which Palestinians have access will be completely depleted of portable water by 2014’ (AAPER, 2011). As a result of the inadequate water supply, the bulk of the Gazan population is forced to purchase water from small scale desalination plants, most of which are privately owned and are subject to little or no regulation and quality controls’ (OCHA, 2011).
The right to food and to safe drinking water and water for sanitation is closely related to the right to health. The lack of safe drinking water in Gaza has serious implications for the health of the inhabitants of Gaza. A significant problem is the high concentration of salts and nitrates which are difficult and costly to remove from the supply of drinking water. ‘Nitrate levels in the Gaza Strip have continued to rise and currently present a health risk throughout the territory’. Exposure to high quantities of nitrates can have serious health repercussions, particularly for infants. In addition, consumption of contaminated water for many years leads to an accumulation of chemicals in the body that can cause chronic diseases like cancer, liver and kidney problems, and reproductive difficulties. Waterborne diseases are also common in Gaza as a result of poor water quality, with children particularly vulnerable and ‘lack of safe water is an immediate cause of malnutrition for millions more children, which can have lasting impact on a child’s cognitive and physical development’ (EWASH, 2011).
The health impact of the poor water access in Gaza is heightened because the standard of healthcare available in the area is severely affected by Israel’s blockade. Article 12 of the ICESCR enshrines the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ with article 12.d expressing the need for ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ (ICESCR, 1976). Yet Gazan civilians continue to be denied this right (PCHR, March 2011). After the Oslo Accords, Israel formally transferred responsibility for the health system in the Occupied Territories to the Palestinian Authority. However, the restrictions Israel impose on a) the import of medical supplies and equipment, b) patient and doctor movement and c) the construction materials necessary for the rebuilding of medical centres and hospitals dramatically impedes the capability of the PA. Physicians for Human Rights state that ‘Israel (has) placed and continues to place in the path of the Palestinian Authority, impediments to the development of a high quality health system that is able to function independently’ (Physicians for Human Rights-Israel, 2011).
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In September 2011 the Gaza Ministry of Health stated that the health system had run out of over 178 kinds of medications and 123 types of medical equipment while 69 additional types of medication and 70 other kinds of medical equipment were due to run out by the end of the year.
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As a result of Israel’s restrictions ‘the movement of the sick from Gaza has become nearly impossible’. While there is not an absolute prohibition on the exit of Palestinians from Gaza for medical treatment , the number of exit permits issues is lower than what is actually needed, due to Israel’s policy, which limits exiting Gaza for medical treatment solely to those it defines as ‘life saving’. For instance the PCHR report that Israel forces have denied Gazan patients suffering from visual problems and amputees the right to move via Beit Hanoun crossing and access hospitals under the pretext that their issue was quality of life rather than the need of life saving treatment (PCHR, March 2011).
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Furthermore, the harsh limitations on the exit of medical students for training and residencies in hospitals in the West Bank, as well as travel by physicians to international conferences, internships and training courses greatly detracts from the level and quality of health services that these doctors can provide (PHR, 2011).
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The deterioration of health conditions is especially aggravated because of the continued ban imposed on the delivery of construction materials necessary for the reconstruction of dozens of health facilities that were completely or partially destroyed during the Israeli offensive of December 2008/January 2008. 15 out of Gaza’s 27 hospitals, 43 of 110 primary healthcare centres and 29 of 148 ambulances were destroyed or damaged (PCHR, March 2011).
The influence and control Israel is able to wield over the provision of health care in Gaza is a clear indication neither the Oslo Accords nor 2005 Disengagement ended the Israeli occupation and are thus unable to absolve Israel of its responsibility for the security and well being of the civilian population in the oPt. ‘The Israeli limitations overwhelmingly prevent and halt efficient development of the health system in the Gaza Strip’ (PHR, 2011). Thus it can be argued that not only is Israel failing in their obligation to ensure the health of the residents of Gaza but they are also, in limiting their access to food, water and healthcare actively preventing it.
Similarly, Israel’s policies violate the right to education in Gaza. The fundamental human right to education is widely recognized; article 26 of the UDHR proclaims that ‘Everyone has the right to education’ (UDHR). The right has subsequently been enshrined in a range of international conventions, including the ICESCR, The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) and The Convention on the Rights of the Child (CRC, 1989). Israel has ratified all of the above.
Despite their legal commitments however, Israel has failed to uphold the right to education in Gaza: as a direct result of Israeli policy, children living in the Gaza Strip are denied their right to education. The impact of Israel’s policies and practices in the occupied Palestinian territories are key factors preventing the progressive achievement of the human right to education. The fulfillment of the right to education requires more than non-interference or allowing minimal standards. ‘Inter alia, it requires that children be able to engage in a safe and healthy environment conducive to learning, with appropriate teaching tools’ (PCHR, July 2011).
A right to education, defined on these terms, is not the reality for the children of Gaza; a host of issues hamper the accessibility and quality of their education. Over the course of the occupation, schools in the Gaza Strip have ‘been repeatedly-and inevitably illegally- targeted by Israeli forces…These attacks, and the inability to repair the resultant damage, have exacerbated a long-standing infrastructure crisis affecting the education system in the Gaza Strip’ (PCHR, July 2011). During Operation Cast Lead 280 of Gaza’s 560 schools sustained damage and 18 were completely destroyed (Al Mezan Centre for Human Rights, 2011). Moreover, as with Gaza’s health facilities, Israel’s restrictions on goods entering Gaza have prevented the repair and rebuilding of these schools. Despite the modification of the restrictions on the import of construction materials in April 2011, Unicef reported that ‘82 percent of the damage to Gaza schools has still not been repaired due to the lack of reconstruction materials’ (UNICEF-oPt, cited in PCHR, July 2011). Rafahtoday.org
This has only served the compound the severe overcrowding problem experienced by schools in Gaza. The majority of schools were already operating on double shifts when the blockade was imposed ‘many others had to adopt this coping mechanism during the following three years’. According to OCHA statistics 79 percent of Ministry of Education schools and over 90 percent of UNRWA schools are running on double or triple shifts, a measure which has required schools to reduce class time and eliminate extra-curricular activities’. Despite double shifts, the average class size is 39 with some classes holding as many as 50 pupils (OCHA, 2011). Israel’s blockade further disadvantages the children of Gaza in that, due to Israeli restrictions, education institutions ‘also suffer from an acute shortage in educational tools, including basic stationary, textbooks, uniforms and furniture’ (PCHR, July 2011).
The restriction on the import of building materials has also caused a housing shortage in Gaza. ‘The human right to adequate housing…derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights’ (General Comment 4, UN Committee on Economic, Social and Cultural Rights). However Israel’s actions deny thousands of Gazan’s access to adequate housing.
Gaza’s housing crisis is the result of two inter-related factors. Firstly the ban on the import of construction materials in 2007 triggered a housing shortage due to the natural growth of the population. This problem was then dramatically exacerbated by the widespread destruction of homes during the ‘Cast Lead’ offensive. According to OCHA, a conservative estimate of the overall number of new housing units required to meet natural growth, to re-house those displaced by the Cast Lead offensive and replace substandard and unsanitary homes in the refugee camps stands at 41,200 housing units (OCHA, 2011). The embargo on the import of construction materials in conjunction with the restriction of approval for buildings projects and has slowed the progress of housing projects in Gaza, serving to sustain the housing shortage. Israel restricts the import of building materials deemed to be of potential military benefit to Gaza’s Hamas government and only a limited number of international, mainly UN-backed, building projects have been permitted, with the Israeli checking process causing severe delays. ‘Progress in the implementation of approved projects has been impeded by a complex monitoring and verification system required by the Israeli authorities before they authorize the entry of each consignment of materials’ (OCHA, 2011). OCHA report that in 2010 Israel approved a total of 8 housing projects to be carried out by UN agencies, entailing the construction of some 600 housing units (most of them since the announcement of the ‘easing’ of the blockade). By March 2011 only 1 of the 8 had been completed. In the case of UNRWA the projects approved entailed less than 5% of the total number of housing units included in the agency’s Recovery and Reconstruction Plan (OCHA, 2011). The progress of local governmental bodies, including the Ministry of Public Works and Housing, and Islamic charity associations is also limited as they are forced to rely on material transferred through the tunnel network. Rafahtoday.org
The housing shortage ‘is exacting a heavy price from large segments of the population, who are confronted with increasingly overcrowded, poor and unsafe living conditions’ (OCHA, 2011). Those that have lost their homes during the ‘Cast Lead’ offensive are among the most severely affected. Many of these families returned to their demolished homes and constructed small temporary shelters on top of or next to the ruins. In this instance it is clear to see how Israel’s actions have directly violated the human right to adequate housing. In addition many Gazans live in overcrowded accommodation; the economic climate and the shortage and thus high price of construction materials diminishing the ability of elder, married family members to build their own house or extend that of their parents. Overcrowding has a series of negative impacts including health-related problems due to reduced access to bathrooms and a decline in academic achievement as children struggle to find space to study (OCHA, 2011). Again then, it is clear that not only does Israel fail in upholding its obligation under international human rights law to ensure an adequate standard of housing, but it also actively prevents the achievement of it.
As the above information demonstrates, the human rights are inextricably linked to one another. As we have seen the rights to food, water and adequate housing are connected to the right to health and all directly impact on access to the right to education. It is also should be clear that Israel’s blockade of Gaza and the restrictions it has imposed on Gazan’s access to their lands and seas constitute direct human rights abuses. Gazan’s are consistently denied the right to self-determination, the right to an adequate standard of living and the right to ‘life, liberty and security of person’ (UDHR, article 3) in the name of Israeli security.
Underpinning the rights discussed here is the right to freedom of movement and it is impossible to talk about human rights in the context of Gaza without reference to it. Article 13 of the UDHR states that:
1. Everyone has the right to freedom of movement and residence within the borders of each states
2. Everyone has the right to leave any country, including his own, and to return to his country. (UDHR, 1948)
As we have seen, Gazans are denied this right; they cannot leave Gaza without permission from Israel. This includes patients seeking medical treatment and students seeking education in the West Bank and abroad. Israel also restricts who is allowed to enter Gaza, including humanitarian aid workers. This is doubly detrimental to the Gazan way of life- on the one hand Israel’s actions have forced residents of Gaza to depend on humanitarian aid on the other hand Israeli measures make access to Gaza extremely burdensome for aid agencies and charities. Similarly, Israel’s restrictions have led to declining standards of health care and education available in Gaza, yet patients and students are largely unable to leave to seek treatment or to study elsewhere.
Israel’s 2010 ‘easing’ measures included a commitment to, streamline permits for entry and exit for humanitarian and medical reasons and for aid workers, and to consider additional ways to facilitate the movement of people to and from Gaza, ‘as conditions improve’. The outcome has been somewhat different. While there has been an increase of permits for businesspeople, the overall ban on exit and entry is still in place and there has been no expansion of the few exceptional categories of Palestinians allowed to travel through Israeli controlled crossings. The number of exits currently stands at about 1% of that of 2000. Moreover fewer permits have been approved for UN local humanitarian staff than before ‘easing’. The permit policy for aid workers and medical patients is still arbitrary, unpredictable and time consuming (International Federation for Human Rights, 2010).
As has been demonstrated human rights are inextricably connected to one another. As was expressed at the outset, Israel’s violation of article 1 of the UDHR- the right to self determination- has a direct impact on all other human rights. As we have seen the same is also true of the reverse. Gazan’s lack access to their right to education, housing, food, water and healthcare, and consequently a large proportion of the population is thus dependent on aid, this ensures that they cannot access their right to self determination and cannot pursue economic, cultural of social development.
The violation of the human rights of the Palestinian people living in Gaza clearly constitutes a breach of article 2 of the UDHR which states that: ‘ Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.’ (UDHR, 1948)
Israel is discriminatory with its application of human right, denying them to the Palestinian people collectively on the basis of their nationality and property. Israel’s blockade of Gaza and restrictions on the use of Palestinian land and seas, as has been demonstrated, constitutes a breach of both their positive obligation to secure human rights but more crucially it also constitutes a breach of Israel’s negative obligation not to violate human rights.
Part 3: Israel’s failure to comply with international human rights law
The conclusion that Israel’s blockade of Gaza directly contravenes international national human rights law is not a controversial one. There has been widespread international condemnation of Israel’s actions and calls for the blockade to end. In 2009 the UN Security Council passed resolution 1860.
‘The resolution sets out urgent tasks for the international community and calls on United Nations Member States to intensify their efforts to provide arrangements and guarantees in Gaza to sustain a durable ceasefire and calm…and to ensure the sustained reopening of crossing points on the basis of the 2005 AMA between Israel and the Palestinian Authority’. It also called for ‘unimpeded provision and distribution throughout Gaza of humanitarian assistance within Gaza, including food, fuel and medical treatment…and emphasises the need to ensure ‘sustained and regular flow of goods and people through Gaza crossings’. (UN resolution 1860, 2009)
In September 2011 a group of independent UN expertspublically reaffirmed their belief that; ‘Decisive steps must be taken to defend the dignity and basic welfare of the civilian population of Gaza, more than half of whom are children…The Israeli blockade of Gaza must end immediately and the people of Gaza must be afforded protection in line with international law’.
Likewise the Middle East Quartet (United Nations, Russian Federation, United States and European Union) stated in June 2010 that; The ‘current situation in Gaza, including the humanitarian and human rights situation of the civilian population, is unsustainable, unacceptable, and not in the interests of any of those concerned’ (unispal.un.org).
The EU has also condemned Israel’s actions towards Gaza, declaring that: ‘The situation in Gaza remains unsustainable. The continued policy of closure is unacceptable and politically counterproductive. The EU calls for an urgent and fundamental change of policy leading to a durable solution to the situation in Gaza’. (Council of the European Union, June 2010)
The Arab League has also criticised Israel, highlighting the fact that- ‘Israel is persistent in violating the international law by its refusal to end its blockade on Gaza people, which led to the deterioration of their health, living and educational conditions and obstructed reconstruction efforts’. (The Palestinian Information Centre, 2011)
In addition significant numbers of NGOs, including many from within Israel, have condemned Israel’s actions, emphasising the human rights implications of the blockade. In April 2011 Amnesty International delivered a petition of 23,000 signatures to Hilary Clinton asking her to urge the Israeli government to lift the blockade of Gaza immediately. The Euro-Mediterranean Human Rights Network (EMHRN), International Federation for Human Rights (FIDH), Medico International, Oxfam International, The Quaker Council for European Affairs, Human Rights Watch, The Norwegian Refugee Council, Physicians for Human Rights- Israel and Save the Children UK are just a few of the many NGOs that have called for an end to the blockade of Israel.
The question at hand then is a theoretical one, regarding the enforceability of human rights. For, as has been demonstrated, under international law Israel has an obligation not to violate the rights of the Palestinian people yet they have continuously done so. The UN and the international community have criticised Israel’s actions towards Gaza as illegal and have voiced concerns about the human rights implications of the blockade. Likewise NGOs have been outspoken about and media outlets have at the very least sporadically covered, the situation in Gaza and the plight of its inhabitants. Yet Israel has not felt compelled by any of the criticism levelled at them to alter their policies. As we have seen, the 2010 ‘easing’ of the blockade, perhaps as a result of international pressure, was minimal and Israel did not even fulfil the measures it set out. Human rights law has not been meaningfully enforced. Referring to the Cast Lead Offensive of 2008/09, Richard Falk- UN Special Rapporteur on human rights in the Palestinian Territories remarked: ‘that such a human catastrophe can happen with minimal outside interference shows the weakness of international law and the United Nations as well as the geopolitical priorities of the important players’ (Falk, 2009). These two factors go along way to explaining how Israel is able to systematically deny the people of Gaza their human rights, violating international laws, with limited reproach and repercussion.
Limited Enforcement Capacity of the Human Rights System
D.L Donoho writes that it ‘seems undeniable that the elaborate edifice- now often rhetorically central in the international relations has and can make some difference’ yet ‘it seems equally undeniable that they system has yet to fulfil its promises or significantly reduce violations of human rights worldwide’ due to the ‘apparent inability of the human rights system to deliver effectively on its lofty and noble promises’ (Donoho, 2006). This is strikingly apparent in the case of Gaza. The violation of rights in the region has not gone unnoticed nor without criticism. UN bodies have monitored, reported and condemned the blockade of Gaza and the breach of Gazan human rights and (some) powerful states have registered their disapproval. Yet beyond this it is difficult to see how the international system can enforce the human rights it proclaims as universal. Human rights are perhaps destined to disappoint as they promise more than can, in reality, be delivered.
It is true to say that the international human rights system has significantly limited enforcement capacity. ‘It relies heavily on the dubious premise that governments will faithfully implement international human rights standards within their own domestic systems’. This reliance on voluntary compliance is theoretically ‘bolstered by a network of international mechanisms and institutions that are, in reality, anaemic at best’ (Donoho, 2006). Although there are some exceptions, for instance the European Court of Human Rights, ‘most international human rights institutions are generally limited to monitoring state compliance and promoting adherence to underdeveloped international standards through dialogue, condemnation and moral suasion’ (Donoho, 2006). This approach, as we have seen, has not been particularly effective in Israel’s case. Constrained by its limited capacity for enforcement the international human rights system often fails to deliver on its promises. Enforcing international law is highly problematic especially when a state proves to be unwilling or unable to comply.
The question then becomes, how can states be made to comply with international human rights legislation? There are multiple views on the enforceability of international human rights. It is of course possible to argue that human rights norms are not meaningfully enforced at all, that rather the notion of such rights is vague and aspirational and that enforcement mechanisms are toothless. When one thinks of Gaza it is not hard to see validity in this view point. However, accepting it leaves Gazan’s with little hope that Israel will ever fulfil its human rights obligations. Accepting this view also means accepting that international human rights standards are effectively meaningless: without any enforcement human rights laws are simply guidelines that states can follow or not as they see fit.
Harold Hongju Koh is more positive about the potential of human rights. He argues that human rights law is and can be enforced, albeit imperfectly. Koh argues that international human rights norms can be internalized into domestic legal systems and that states can be influenced into adhering to human rights standards. He proposes five explanations for a states’ decision to comply or not with international law- ‘the five work together as complementary conceptual lenses to give a richer understanding of why compliance with international law does or does not occur in particular cases’ (Koh, 1999). An application of Koh’s principles to the case in hand may shed some light on why Israel has failed to comply with the international laws guarding human rights in Gaza.
Why do states comply with international law?
According to Koh there are five interrelated reasons that explain why states comply (or not) with international law.
1. Power/coercion: the realist explanation is that states never truly ‘obey’ international law – they only comply because somebody makes them.
2. Self interest/rational choice: under this explanation nations may choose rationally to follow certain global rules out of a sense of self interest
3. ‘Liberal’ theories- Koh distinguishes between;
4. ‘rule legitimacy’ theory which suggests that states feel some sort of ‘internal compliance pull’ to rules that they feel are legitimate and
5. ‘political identity’ theory which suggests that a state’s compliance depends crucially on the extent to which their political identity is based on liberal democracy.
6. Communitarian theories – which hold that nations obey international law because of the values of the international society of which they are a part. The idea is that one’s membership in a community helps to define how one views the obligations of that community.
7. Legal Process Explanations- Koh distinguishes between the ‘international legal process’ or ‘horizontal’ reasons for compliance, which tend to function at a government to government level and the ‘vertical’ explanation which focuses on the relationship between the international and domestic legal systems.
Israel and the international community
Through the application of Koh’s framework to Israel, the answer to the question- why has Israel failed to comply with international human rights law- is a combination of the following reasons:
1. Israel has not been coerced into doing so,
2. Israel does not see compliance as particularly important for state interest,
3. Israel does not feel any pull to comply based on the legitimacy of human rights law nor does Israel’s political identity hinge on respect for human rights,
4. The international community has not influenced Israel into complying
5. The international legal process has not induced compliance.
Whatever combination of the above factors has led to Israel’s failure to comply with international human rights and humanitarian law- the inference is the same: the international community have a significant role to play. The limited enforcement capacity of international human rights institutions, in conjunction with Israel’s close relations with the US and Europe and the political and economic climate makes an armed ‘humanitarian’ intervention to coerce Israel to comply highly unlikely. This does not mean however that pressure cannot be applied on Israel in other ways. International condemnation, for the most part, has been somewhat weak, much tempered by the fact that Israel represents a strong ally in the Middle East for Europe and the US. Recall Falk’s statement about the ‘geopolitical priorities’ of the major players at the UN. In 2009, the US abstained from voting on the UN Security Council resolution calling for an immediate ceasefire in Gaza and outright criticism of Israel by the United States has been limited at best. While other state actors have been slightly more outspoken about the Gazan crisis, their words have limited effect as by and large their diplomatic and economic relations continue with Israel as normal. Israel’s interests are not sufficiently comprised by their breach of international law to dissuade them from doing so.
The liberal and communitarian explanations for compliance outlined by Koh are interrelated. It is not true to say that Israel’s political identity is not dependent on human rights. To a certain extent Israel’s standing in the international community and its close connection with the US is based on its identity as a liberal, democratic, capitalist state. Human rights are tied up in this identity. However the overriding element in Israel’s political identity is military power and defence: a country at war. For Israel defence trumps human rights: particularly the human rights of Palestinians who are presented as dangerous and ‘other’, making it easier for Israel to dismiss their claims to rights. The communitarian argument that identities and behaviour are dependent upon the society or group one belongs to brings us to the international community. Israel’s prioritisation of ‘defence’ over human rights is accepted and facilitated by the rest of the international community because not to do would risk damaging their own rights, as sovereign states, to self defence.
The conclusion then is simply that Israel acts beyond the parameters of International law because it has been allowed to. International reactions to Israel’s siege of Gaza have been insufficient to warrant a change in Israeli behaviour. Israel’s failure to comply with international covenants on human rights has not damaged Israel’s self interest in any meaningful way, it has not been held to account. The UN is rendered powerless if the most powerful global actors are unwilling to take action. Thus Israel’s violation of Gazan human rights will continue as long as the international community fails to place adequate pressure on Israel to comply with the international agreements they is party to.
References:-
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AAPER. (2011 ). Thirsting for Justice: Diminishing Access to Water in the Gaza Strip . available at HYPERLINK ‘http://www.aaper.org/site/apps/nlnet/content2.aspx?c=quIXL8MPJpE&b=5492575&ct=8145153¬oc=1’ http://www.aaper.org/site/apps/nlnet/content2.aspx?c=quIXL8MPJpE&b=5492575&ct=8145153¬oc=1
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AIDA. (2011) Restricting Aid: Access and Movement Constraints in the Occupied Palestinian Territories. Humanitarian Exchange Magazine, 51, July 2011.
-
Al Mezan Centre for Human Rights (2011). Factsheet: Children Access to Education in the Gaza Strip. available at: HYPERLINK ‘http://www.mezan.org/upload/13198.pdf’ http://www.mezan.org/upload/13198.pdf
-
Bashi, S and K Mann. (2007). Disengaged Occupiers: The Legal Stauts of Gaza . Gisha .
-
Council of the European Union (2010). Council Conclusions on Gaza 14th June 2010. Available at HYPERLINK ‘http://www.consilium.europa.eu/uedocs/cmsUpload/115158.pdf’ http://www.consilium.europa.eu/uedocs/cmsUpload/115158.pdf
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Donnelly, J. (2003). Universal Human Rights in Theory and Practice . New York : Cornell University Press.
-
Donoho, D. L. (2006 ). Human Rights in the 21st Century . bepress Legal Series .
-
EWASH advocacy task force. (2011). The Rights to Water and Sanitation in the Occupied Palestinian Territories . EWASH .
-
EWASH. (2011 ). Water Quality in the Gaza Strip (factsheet 3).
-
Falk, R. (2009). Understanding the Gaza Catastrophe . Huffington Post . available at: HYPERLINK ‘http://www.huffingtonpost.com/richard-falk/understanding-the-gaza-ca_b_154777.html’ http://www.huffingtonpost.com/richard-falk/understanding-the-gaza-ca_b_154777.html
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Koh, H. H. (1999). How is International Human Rights Law Enforced. Indiana Law Journal , 74, 1397-1417.
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International Federation for Human Rights (2010). Dashed Hopes: Continuation of the Gaza Blockade. 30 November 2010, available at: http://www.unhcr.org/refworld/docid/4cf62f9e2e8.html [accessed 26 January 2012]
-
OCHA-oPT. (March 2011). Easing the Blockade: Assessing the Humanitarian Impact on the Population of the Gaza Strip .
-
OCHA-oPT. (October 2011 ). Humanitarain Situation in the Gaza Strip .
-
OCHA-oPT. (December 2011). The Monthly Humanitarian Monitor .
-
Palestinian Cetnre for Human Rights (March 2011). Factsheet: Health Sector in Gaza. available at HYPERLINK ‘http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=7382:health-sector-in-gaza-&catid=56:fact-sheets-&Itemid=18’ http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=7382:health-sector-in-gaza-&catid=56:fact-sheets-&Itemid=18
-
Palestinian Centre for Human Rights (July 2011). Education Denied: Israel’s systematic violation of Palestinian children’s right to education. available at: HYPERLINK ‘http://www.pchrgaza.org/files/2011/education%20book.pdf’ http://www.pchrgaza.org/files/2011/education%20book.pdf
-
Physcians for Human Rights- Israel (2011). September Declaration and Health. September. available at HYPERLINK ‘http://www.phr.org.il/uploaded/September_Declaration__ENG_Final.pdf’ http://www.phr.org.il/uploaded/September_Declaration__ENG_Final.pdf
-
Office of the United Nations Commissioner for Human Rights. (2010). The Right to Water. Geneva : United Nations .available at HYPERLINK ‘http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx’ http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx
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The Palestinian Information Centre. (2011). Arab League demands UN, quartet to end Gaza siege 31/12/2011. Retrieved 24/1/ 2012, from The Palestinian Information Centre: HYPERLINK ‘http://www.palestine-info.co.uk/en/default.aspx?xyz=U6Qq7k%2BcOd87MDI46m9rUxJEpMO%2Bi1s7Jpydzecw4f9oQNtNQneLgi%2Bll0usx7/3nXtLquqtjjwVZir2OJ%2BPtPSRTWCZwNN%2B1uDRyiIXRftIk3vw4CTbZVzVM9L1BVoD9JoS/xlPPf0%3D’ http://www.palestine-info.co.uk/en/default.aspx?xyz=U6Qq7k%2BcOd87MDI46m9rUxJEpMO%2Bi1s7Jpydzecw4f9oQNtNQneLgi%2Bll0usx7/3nXtLquqtjjwVZir2OJ%2BPtPSRTWCZwNN%2B1uDRyiIXRftIk3vw4CTbZVzVM9L1BVoD9JoS/xlPPf0%3D
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UN. The Foundation of International Human Rights Law . Retrieved Janurary 26, 2012, from The Universal Declaration of Human Rights: http://www.un.org/en/documents/udhr/hr_law.shtml
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WASH (Gaza). (2011 ). Monthly Situation Report (January 2011) .
-
World Food Programme. (2011). Occupied Palestinian Territory- Changes on Gaza Market Household Conditions following Israel’s 20 June 2010 New Access Regime. available at: http://www.wfp.org/content/occupied-palestinian-territory-gaza-eased-or-un-eased-june-2011
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World Food Programme and Food and Agriculture Organisation (December 2009). Occupied Palestinian Territory: Food Security and Vulnerability Analysis Report. Available at: http://unispal.un.org/UNISPAL.NSF/0/FC44A5D7F00AA567852576960059BEB4
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Wright, F and S Robinson (2010). Humanitarian Minimum: Israel’s Role in Creating Food and Water Insecurity in the Gaza Strip. Physicians for Human Rights-Israel. Available at http://www.scribd.com/doc/46575063/Humanitarian-Minimum-Israel-s-Role-in-Creating-Food-and-Water-Insecurity-in-Gaza
[1] Tables taken from International Federation for Human Rights- Dashed Hopes: Continuation of the Gaza Blockade
[2] Article 25 of the UDHR states that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food…’ (UDHR, 1948) and Article 11.2 of the ICESCR recognises the ‘fundamental right of everyone to be free from hunger’ (ICESCR, 1976).
[3] Special Rapporteur on the right to food, Olivier De Schutter; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover; Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque; Special Rapporteur on extreme poverty and human rights, María Magdalena Sepúlveda Carmona, Special Rapporteur on the situation of human rights on Palestinian territories occupied since 1967, Richard Falk.
[4] Turkey for instance was embroiled in diplomatic conflict with Israel following the flotilla attack of May 2010
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