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The Legalisation of Human Rights Violations: Israeli Knesset Passes Two Discriminatory Laws in One Day
11، Oct 2010




28 July 2005

Al-Haq is gravely concerned by the Israeli Knesset's (parliament) passage on 27 July 2005 of two amended laws, the Israeli Civil Wrongs Law (Compensation Law) and the Nationality and Entry into Israel Law (Family Unification Law). These laws not only deny Palestinians their fundamental rights under international human rights and humanitarian law but are also of a clearly discriminatory nature.

The amended Compensation Law precludes the vast majority of Palestinians resident in a "zone of conflict" from receiving compensation for injury caused by the Israeli occupying forces, save for a number of limited exceptions. Such Palestinians may seek compensation from a special committee appointed by the Israeli Minister for Defence, but this committee will only recommend the payment of compensation in "exceptional circumstances". Already, under the Oslo Accords, Palestinians are effectively precluded from taking civil action against Israelis in Palestinian courts. Consequently, Palestinians injured by the Israeli military in the Occupied Palestinian Territories (OPT) will in practice be denied their fundamental right to a remedy under international law. This law will impact not merely all Palestinians in the OPT injured from this time onward, but all those injured since the outbreak of the current intifada, since the law applies retroactively to September 2000. Further, the underlying efforts to discourage Palestinians from obtaining compensation sit in stark contrast to the decision to provide compensation to thousands of Israeli settlers affected by Israel's unilateral withdrawal (the Disengagement Plan) from the Gaza Strip and four small settlements in the West Bank, although their presence in the OPT is unquestionably illegal under international law.

The right to an effective remedy is upheld in, inter alia, Article 8 of the Universal Declaration of Human Rights, and Article 2 of the International Covenant on Civil and Political Rights (ICCPR). Customary international humanitarian law, as reflected in the Fourth Hague Convention Respecting Laws and Customs of War on Land and the First Additional Protocol to the Geneva Conventions also clearly maintains that States are liable to pay compensation for violations which result in injury to protected persons. This right has also recently been further codified in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

The amended Family Unification Law serves to separate Palestinians in the OPT (excluding East Jerusalem) from their families inside East Jerusalem and Israel. This law, passed initially as an Israeli Cabinet decision in May 2002, made into law the following year, and repeatedly renewed since that time, continues to deny family unification to tens of thousands of divided Palestinian families. In accordance with yesterday's amendment, only Palestinian men aged 35 and older and women aged 25 and older may be considered for unification with their family in East Jerusalem and Israel. The ability of Palestinians to seek effective remedy is thwarted by the cyclical process of the repeated renewal of this law by the Knesset, balanced by the refusal of the Israeli High Court of Justice to consider the matter due to the "temporary" nature of the law.

The right to marry and found a family, as well as to choose one's spouse, is clearly maintained under international human rights law, including Article 23 of the ICCPR and Article 5 (4) of the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD). These rights are seriously infringed upon as a result of this law, whose basis can only be seen as demographic rather than as motivated by security concerns. The Family Unification Law has been repeatedly condemned by the UN Committee on the Elimination of Racial Discrimination, most recently in Decision 65 of August 2004.

The adoption of these two laws is of particular concern due to their blatantly discriminatory character. They are designed to deny Palestinians basic rights that Israelis shall continue to enjoy. This marks an expansion of the Israeli practice of using "legal" means to discriminate against Palestinians. The principle of non-discrimination is one of the fundamental cornerstones of international law, and the discriminatory nature of the Compensation and Family Unification laws are in violation of Israel's obligations as a State Party to various human rights treaties, particularly ICERD and ICCPR.

The continuing legal formalisation of Israel's illegal practices towards the Palestinian population will only serve to further narrow the legal space for Palestinians to obtain effective remedy. It also blocks the ability to achieve a just and durable solution to the Israeli-Palestinian conflict. Al-Haq thus:

Calls on the Israeli authorities to revoke its discriminatory laws and to ensure that Palestinians have access to an effective remedy.

Calls on the international community to pressure Israel to abide by its legal obligations under international human rights and humanitarian law.

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