Lettre ouverte à l'occasion du dialogue politique Union Européenne-Autorité Palestinienne le 28 septembre 2009

Le Réseau s'inquiète de la situation des droits de l'Homme dans les Territoires Palestiniens Occupés et demande à l'UE d'aborder les problèmes suivants avec l'Autorité Palestinienne durant le dialogue politique du 28 septembre 2008 (Document en anglais)

OPEN LETTER ON THE OCCASION OF THE EU- PA POLITICAL DIALOGUE

28 SEPTEMBER 2009

To:

The Presidency of the European Union

The High Representative of the European Union for the CFSP, Mr Javier Solana

The Commissioner for External Relations, Ms Benita Ferrero-Waldner

September 15, 2009

Re: EU-PA Political Dialogue – Human Rights Violations Committed by the Palestinian Authority

Dear Ministers,

Dear High Representative,

Dear Commissioner,

The Euro-Mediterranean Human Rights Network (EMHRN) is concerned with the human rights situation in the Occupied Palestinian Territory (OPT) and urges the EU to raise the below mentioned human rights concerns with the Palestinian Authority (PA) during the EU-PA Political Dialogue due to take place on 28 September 2009.

The deteriorating human rights situation in the OPT is the result of two principal factors: the ongoing Israeli occupation, and the political fragmentation between the Gaza Strip and the West Bank. While the upcoming EU-PA Political Dialogue may not be the forum for addressing the Israeli occupation, there are numerous issues relating to the internal political situation, which we urge you to address.

The EMHRN have highlighted five key human rights concerns for your attention. Each of these relates to measures of oppression carried out by the governments in Gaza and Ramallah against their political opponents. In the West Bank, the majority of Palestinian-perpetrated human rights abuses are directed against individuals suspected of affiliation with the Hamas movement, while in the Gaza Strip, suspected affiliates of the Fatah movement are the primary target. This situation has serious, potentially long-term implications, not least as it undermines respect for the rule of law and denies individuals their legitimate rights. As the upcoming Political Dialogue will address only PA violations of human rights, this letter will focus on such violations.

While the EMHRN recognises that the sovereignty of the PA over the Israeli occupied West Bank is limited, to the extent that the PA exercises some control over parts of the West Bank, it is responsible for enforcing law through effective and lawful measures in accordance with its obligations under international law.

In light of the above, the EMHRN urges the EU to include the following human rights concerns as agenda items at the Political Dialogue:

1) Gender equality and women’s rights[1]

While the PA is not an independent sovereign state able to sign and ratify international human rights treaties, it has unilaterally committed itself to abide by international law, including the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW, since 8^th March 2009). CEDAW requires that states “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices, which constitute discrimination against women.” It also obliges states to “refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation” and to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise”. Moreover, article 9 of the Basic Law stipulates that “Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, colour, religion, political views or disability”, creating an important foundation for equality and non-discrimination in the Palestinian legal system.

Although violence against women is widespread in the Occupied Palestinian Territory, no comprehensive strategy has been activated to prevent violence against women and girls, to sanction abuses when they occur, to encourage victims to report acts of violence and to protect them from further violence. The result is virtual impunity for perpetrators of domestic violence and continued obstacles to the protection of women victims of violence. Aware of this situation, the minister of Woman Affairs has formed a High National Committee[2] that was assigned to prepare the National Strategy for protection of women from violence. In December 2007, the strategy was approved, but has not been implemented to date.

A host of discriminatory laws and practices persist in the West Bank and the Gaza Strip. While some of these laws are gender neutral on their face, in reality they affect Palestinian women almost exclusively. These laws include provisions that provide a reduction in penalty to men who kill or attack female relatives committing adultery; relieve rapists who agree to marry their victims from any criminal prosecution; and that fail to recognize sexual violence committed within a marriage. Article No. 340 of the Criminal Law for instance allows men that kill women to benefit from “accepted excuse” (on the basis of concept of honour) and, thus, deal with crimes perpetuated on women by their male relatives under the pretext of family honour. Other laws denies children who are victims of incest the right to file sexual abuse charges (only male family members are granted this right) and criminalize abortion in cases of rape or incest, forcing victims of sexual violence to carry their pregnancy to term.

According to a report (2008)[3] of the United Nation Population Fund, the majority of married women (61.7%) have been exposed to psychological violence (for unmarried women the rate is of 53.3%), from which according to a research from the Palestinian Central Bureau of Statistics a fifth of them would have been exposed to physical violence too[4].

In light of the above, the EMHRN calls on the EU to urge the PA to implement the National Strategy for protection of women from violence, and to take the necessary practical steps to make it operational. The EU should urge the PA to abolish article No. 340 of the Criminal Law and to adopt a family protection law that effectively prohibits and appropriately punishes all forms of violence against women and girls in line with international standards. In addition, at the forthcoming Political Dialogue, the EU should further encourage the PA to adopt a unified Palestinian penal code, which reflects the spirit of international human rights instruments, particularly those tackling women human rights, as the CEDAW.

2) Freedom of Association

According to the Palestinian Ministry of Interior a total of 171 organisations were dissolved in the West Bank in 2008[5], typically based on their mere affiliation with opposing political movements.  PA authorities continued to raid the offices of numerous organisations, including charitable organisations, searching them, tempering with and typically confiscating their contents.

In addition, the PA has interfered in the managing of such organisations. PA authorities have regularly impaired the election of governing bodies, either through the dismissal of general directors, the appointment of interim governing bodies and/or by arresting and prosecuting staff and board members. The PA further restricted Palestinian’s freedom of association by imposing security-related requirements as a prerequisite for registering an association in the West Bank[6].

In 2009, the Ministry of Interior (MoI) inspected 210 societies in the West Bank, and the Monetary Authority instructed banks to restrict the opening of bank accounts for civil society organizations. Every association is obliged to obtain a written document from the MoI to certify the legal registration status of the association but many of them never received such documents nor did receive any rejection notice[7]. The exercise of this form of administrative and financial control over Palestinian associations is in clear violation of the provisions of Articles 6 and 13 of the Law of Charitable Associations and Community Organizations.

The fundamental right to form and join associations is guaranteed at the international level in both the Universal Declaration of Human Rights (UDHR) and the International Covenant of Civil and Political Rights (ICCPR) and in Palestinian national legislation, such as the Palestinian Charitable Associations Law as well as the Basic Law. The PA therefore has the duty to ensure the implementation of the right to freedom of association at the domestic level and to guarantee the efficient exercise of this right - without discrimination - by individuals under its jurisdiction. Through the policies and practices outlined above, the PA has continuously and actively prevented Palestinians from fully enjoying their right to freedom of association, in clear violation of its obligations under national and international law.

In light of the above, the EU should pressure the PA to act in accordance with its own national legislation as well as international human rights instruments, and reopen all unlawfully shut associations, revoke all arbitrary security-related restrictions on the registration of associations, put an immediate halt to all interference in the management of organisations and release all staff members of such organisations who have been detained on arbitrary grounds.

3) Freedom of Expression

The exercise by Palestinians of their freedom of expression, protected through international human rights instruments such as the UDHR and the ICCPR as well as the Palestinian Basic Law, was severely undermined by PA forces in the West Bank. Palestinians were regularly prevented from expressing, seeking, receiving and imparting any information and ideas opposing or criticising the ruling government. Typically based on such political motivations, the PA dispersed numerous demonstrations[8]; dismissed hundreds of teachers and other civil servants who are in suspected affiliation with Hamas and heavily suppressed the freedom of the media in the West Bank through various illegal means.

Palestinian journalists expressing political views criticising or opposing the ruling authorities were subjected to arbitrary detention, torture and other forms of cruel and inhuman treatment and/or punishment as well as to assaults and assassination attempts[9]. Palestinian security agencies further prevented journalists and the mass media from covering specific events and/or activities by national factions, confiscated some properties belonging to Palestinian journalists and refused to renew the licences of several media institutions. Moreover, they raided the premises of several individual journalists as well as media institutions, such as the Al Huriyyeh radio station in Hebron and the Ramattan news agency, Al Bayan radio station and Watan local TV station in Ramallah[10].

The efforts by the media in the West Bank to disseminate information were further undermined by the imposition of bans on certain printings in the West Bank. Security agencies have prohibited the publication and distribution of several newspapers, such as Al Risala, Falasteen, and Minbar Al Islah, shut down their offices and arrested some of their reporters, thus undermining the access by the public to information through the diversity of sources.

The exercise of freedom of expression, including the ability to appraise events objectively through general access to information, is a vital factor with respect to strengthening peace and international understanding. Journalists as well as individuals must have the freedom to seek, receive and impart information and ideas to the fullest possible extent and without any interference by the government.

For this reason the EMHRN calls on the EU to urge the PA to reopen the above mentioned media institutions, to lift the ban imposed on several newspapers, to refrain from exercising any censorship based solely on political opposition, to release Palestinian journalists detained on these grounds and to allow regular media coverage of politically relevant events in the West Bank.

4) Detention, Ill-treatment and Torture

A further cause of concern is the fact that detention in the West Bank and Gaza Strip is rarely carried out for valid criminal or security reasons. Despite the ruling of the Palestinian High Court of Justice on 20 February 1999 that all political arrests are illegal and that all executive parties must refrain from conducting illegal political arrests, the majority of arrests in the OPT today are politically motivated. PA security forces in the West Bank continue to arrest Palestinians based merely on their alleged affiliation with Islamic movements, such as the Hamas or its Executive Forces. Detention on political grounds has proved to be a widespread trend in the OPT, targeting those who have either expressed opposition to the ruling government or are simply affiliated with opposing political factions, including, but not limited to, Imams of mosques, teachers, university professors, students and journalists[11]. Moreover, decisions of Palestinian Courts to release citizens detained on the ground of “affiliation to militia” are systematically delayed or not enforced, in violation of Article 106 of the Palestinian Basic Law which states that: “Judicial decisions are enforceable and any form of defaulting on their implementation is a crime punishable by imprisonment or dismissal from office” [12].

A further cause of serious concern are the detention conditions in which Palestinian detainees are held. Detainees, including children, continue to be subjected to torture during interrogation and/or detention. Torture is often used as means to coerce a (false) confession and has lead to four deaths in custody in the OPT between June 2007 and July 2008, one of which in the West Bank.

Worryingly, this trend continues unabated. In July 2009 alone, the Palestinian Independent Commission for Human Rights (ICHR) received 28 complaints from Palestinians in the West Bank alleging that they were subjected to torture[13]. In August 2009, 12 complaints of alleged torture were documented[14]. According to documentation by Al-Haq, a Ramallah-based Palestinian human rights organisation, and the ICHR, detainees are typically subjected to verbal insult and physical abuse, such as severe beating, kicking and whipping. Detainees are further exposed to extreme detention conditions, such as severe cold, solitary confinement in dark and narrow cells, blindfolding and shackling for prolonged periods of time, sleep depravation, revilement and humiliation, the shabah method, which involves forcing detainees to remain in painful stress positions for prolonged periods of time[15] and the bastinado torture, which involves the consistent  beating of the soles of the feet with a stick encased in plastic piping.

The EMHRN would like to highlight the case of Fadi Husni Hamadneh, who died on 10^th August 2009 while he was in custody in the Al-Juneid detention center in Nablus, which is under the jurisdiction of the Palestinian National Security Forces. The death was allegedly caused by self-inflicted hanging inside the room where Fadi Hamadneh was held after having been subjected to shabah and bastinado tortures[16].

Furthermore, a large number of detentions are based on decisions of the Military Judicial Commission as opposed to civil judiciary, and fail to comply with the norms and principles of a fair trial, in contravention of Palestinian as well as international law. Civilians are regularly detained without charge or trial, based on arrest warrants issued by the Military Justice Authority[17]. In August 2009 alone, the ICHR received 54 complaints against PA security agencies of citizens affected by improper detention procedures, that is to say not complying with fair legal procedures and denying citizens their personal freedoms without any legal justification, thus bringing to arbitrary detention[18].

The rights to freedom from arbitrary arrests, torture and other forms of ill-treatment as well as the right to a due process of law are enshrined in numerous international human rights instruments, such as the UDHR, the ICCPR and the UN Convention against Torture.

The EMHRN thus calls on the EU to urge that the PA immediately cease its policy of arbitrary arrests, torture and other forms of ill-treatment and to release all prisoners of conscience and political dissidents whose freedoms have been curtailed either arbitrarily or as a result of unfair trials without delay and to stop trying civilians in military courts.

5) Death Penalty

After several years of abstention, Palestinian courts in the West Bank and Gaza Strip resumed their practice of capital punishment. In 2008 a total of 13 death penalty sentences were pronounced in the OPT, six of which in the West Bank. Since the beginning of 2009, 13 death sentences have been issued, two of which in the West Bank. This type of punishment was usually declared in cases of (alleged) treason, collaboration with the Israeli occupying authorities and/or selling property to the Israeli “enemy”.

The death penalty not only constitutes a flagrant violation of the fundamental right to life, but it is incompatible with the dignity inherent to every human being and violates the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment, enshrined in international human rights instruments such as the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights and the UN Convention against Torture.