Interview: UN Rapporteur Francesca Albanese on the Imperative of Ending Israel’s Occupation of Palestinian Territories Features
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Interview: UN Rapporteur Francesca Albanese on the Imperative of Ending Israel’s Occupation of Palestinian Territories
Francesca P. Albanese is an international lawyer and scholar, renowned for her contributions addressing the question of Palestinian refugees, which constitutes the most enduring and complex refugee crisis following World War II. She has penned numerous publications and analyses on the issue. In 2020, she collaborated with Lex Takkenberg to co-author the second edition of the book, “Palestinian Refugees in International Law.” In recognition of her expertise, on May 1st, 2022, Albanese assumed the role of United Nations Special Rapporteur on the situation of human rights in the occupied Palestinian territories. In an interview with JURIST, Albanese discusses the challenges she has faced as UN Special Rapporteur, the findings from her recent report on the conditions of Israel’s ongoing occupation of the Palestinian territories, and her perspective on what is necessary to end Israel’s occupation.

JURIST: As the United Nations Special Rapporteur on the situation of human rights in the occupied Palestinian territories, can you talk about why Israel has prevented your entry into the occupied Palestinian territories and how this has prevented you from carrying out your job as UN Special Rapporteur?

Francesca Albanese: Like other Special Rapporteurs (SRs), I am tasked to base my reports primarily on country visits, usually two each year. However, since 2008, there has been an embargo against us Special Rapporteurs of the occupied Palestinian territories (oPt), greatly limiting my access to the territories within our investigative mandate. None of us have been allowed to access the occupied Palestinian territories for 15 years, starting from the moment Richard Falk was detained and then deported from Ben-Gurion Airport upon arrival. This occurred despite the fact that Israeli authorities had been duly informed and involved in his mission. Ever since the UN does not allow SRs of the oPt to travel to the occupied Palestinian territory without a ‘prior visa’ from the Israeli authorities. However, Israeli authorities have never responded to a request for such a permit, which the UN interprets as a “non-authorization.”

The Special Rapporteur’s code of conduct stipulates that we only conduct official visits upon the invitation of the authorities of the relevant countries. Like my predecessors, I have received invitations from the State of Palestine, which is recognized by the international community as the representative of the Palestinian people. Only they have sovereignty over the Palestinian territory, the occupied status of the territories notwithstanding.

In preventing SRs from entering the occupied Palestinian territory with a valid reason under international law, Israel abuses its power. As an occupying power, Israel does not possess sovereignty over the occupied Palestinian territory. Its role, administrative in nature, should be to facilitate my (and others’) entry, as well as regulate movement within the occupied Palestinian territory while ensuring security and order.

I have sent several letters to Israel regarding my planned visit to the occupied Palestinian territory, eventually scheduled for November last year. I did not receive any response. As the visit date approached, Israeli authorities indicated to the UN that I would be granted access and had to apply like anyone else. I submitted an application to enter the oPt to Israel. It took eight months and no ‘permission’ was granted to me.

In the meantime, in December 2022 I started my field investigation which included a non-country visit to Amman, Jordan where I met with relevant stakeholders. This included academics, representatives of Palestinian and Israeli civil society, and international diplomats. Afterwards, I continued my meetings remotely, including virtual tours and town-hall meetings in the occupied Palestinian territory, gathering and documenting dozens of painful testimonies.

JURIST: Previously it was asserted by numerous human rights organizations, and even former British Prime Minister David Cameron, that the people of Gaza are living in an “open-air prison” due to Israel’s occupation. Recently, you made the statement that the Palestinians in the entire occupied Palestinian territories, including the West Bank, are living in an open-air prison. Please explain how Israel’s open-air prison-style occupation is not solely confined to Gaza but also extends to the entire occupied Palestinian territories, including the West Bank and East Jerusalem.

Albanese: Within the intricate fabric of the oppression of Palestinians under Israel’s 56-year occupation, the most poignant manifestation of deprivation of liberty emerges through the mass incarceration of Palestinians behind bars. However, a multifaceted scheme of physical, bureaucratic, and digital architectures confines the entire Palestinian people in the occupied territory. The physical dimension unfolds with an array of barriers: checkpoints that punctuate and hinder daily life; colonies that encircle and engulf entire Palestinian villages, bypass roads that cut into particles their very existence and livelihood; and the Wall that divides the land and, in effect, annexes around 10 percent of occupied territory. This includes precious resources, such as pastures, farmland, and water.

Bureaucratic mechanisms further tighten Israel’s control over the Palestinians, through permits, prohibitions, and other related tools. From taking up residence to building a house to traveling within the occupied territory or abroad, Palestinians need an Israeli permit. This is often denied, forcing Palestinians into absurd limitations and precarity.

Simultaneously, the digital realm ushers in a new era of panopticon-like surveillance, including CCTV cameras and cutting-edge facial recognition technology that undermine the privacy of Palestinians throughout their daily lives. In Hebron and East Jerusalem, widespread control of the public space has involved a web of invasive spyware.

This multidimensional tapestry of constraints has been controlling and managing the Palestinian population for decades. That is why in the report, to illustrate the life of Palestinians under occupation, I discuss the concept of widespread carcerality. Drawing upon Michel Foucault’s notion of the carceral continuum from his seminal work Discipline & Punish: The Birth of the Prison, this framework encapsulates the intricate interplay between imprisonment and control. Israel’s oppression of Palestinians presents features of an infrastructure of persecution, often involving ill-treatment (and even torture) behind bars. This is intertwined with the ever-watching eye of surveillance, within an increasingly tightening space outside prisons themselves. Zooming from the micro-level of captivity – consisting of violent arrests, arbitrary detentions, and the shadows of torture –to a broader canvas where the entire Palestinian people is trapped in enclaves, we see how Israel routinely treats them as a collective threat to the existence and security of Israel.

Widespread carcerality is a hallmark of settler-colonial regimes that have imprisoned indigenous peoples – already dispossessed of their homeland by the same regimes –into tightly controlled reserves. This is done by the regimes to advance the theft of land from and tightening of control over indigenous peoples. Carcerality is yet another way of eliminating them while the regimes facilitate the settlement of other populations on their lands.

JURIST: Many human rights organizations like the Israeli-based organization B’Tselem, Human Rights Watch, and Amnesty International have classified Israel’s occupation as constituting apartheid. The distinguished linguist and dissident Noam Chomsky, however, disagrees with the characterization. Chomsky says what Israel is doing in the occupied territories is “worse than apartheid.”

Chomsky asserted that “In the Occupied Territories, what Israel is doing is much worse than apartheid. To call it apartheid is a gift to Israel, at least if by ‘apartheid’ you mean South African-style apartheid. What’s happening in the Occupied Territories is much worse. There’s a crucial difference. The South African Nationalists needed the black population. That was their workforce. … The Israeli relationship with the Palestinians in the Occupied Territories is totally different. They just don’t want them. They want them out, or at least in prison.”

What is your response to Professor Chomsky’s assertion? Is classifying Israel’s occupation as “apartheid” indeed a gift to Israel?

Albanese: I do agree with Professor Chomsky’s analysis regarding the difference between the non-white South Africans and the Palestinians in the eyes of their respective oppressors. As I look at the Apartheid Framework in strictly legal terms, I tend to think that its application is simply necessary as the facts on the ground require it.

A critical aspect that was unaddressed even in South African apartheid, both traumatic to the black population and that strongly parallels the case of Palestine, is the socio-economic legacy of oppressing a colonized population. This reality should be accounted for in the experience of Palestinian people, who have endured a century of forced displacement, dispossession, disenfranchisement, and the painful dissolution of a homeland once present. This was facilitated by both British colonial rule and subsequent Israeli rule, since 1948 (we shall not forget that Palestinians with Israeli citizenship in Israel were under military rule for two decades).

A second aspect that has often been circumvented in the discourse around apartheid in Palestine is the recognition of the Palestinian people’s collective rights to self-determination. For decades Israel has intentionally violated this right, consisting of four main elements. First, territorial sovereignty, which Israel violates by seizing, annexing, and fragmenting the occupied Palestinian territory. Since 1967, Israel has established over 270 colonies across the occupied territory and transferred over 720,000 Israeli-Jewish settlers therein. This is an essential feature of settler-colonialism. Second, sovereignty over natural resources, which Israel violates by extracting and exploiting Palestinian resources to generate profits benefiting third parties only. Third, a people’s cultural existence, which Israel violates by appropriating, erasing, and suppressing symbols of Palestinian identity. This, in turn, leads to the ‘de-Palestinization’ of land and life in the occupied territory. Fourth, formation and expression of the Palestinian polity, which Israel violates by interfering with or repressing the collective political will and activity of the Palestinian people. This long-standing structural disenfranchisement of Palestinians may not alone be captured by the apartheid legal framework, yet it does expose it to a significant degree. Within Israel’s express annexation plans, underscored by the marginalization and dispossession of the Palestinians, racial discrimination is unavoidable; it is necessary for Israel’s extraterritorial control of Palestinian land.

By exposing the intrinsic link between settler-colonialism and apartheid, we see a critical aspect that may have been overlooked in dismantling apartheid in South Africa. If the settler-colonial root causes of apartheid against the Palestinians are not resolved, an unjust structure will be preserved, namely colonial domination that produces (and reproduces) racial inequality.

JURIST: On July 3rd, 2023, the Israeli military began a two-day assault on the Jenin refugee camp in the Palestinian city of Jenin. This was the third Israeli assault on the Jenin refugee camp this year. Why is Israel repeatedly targeting this refugee camp and can you talk about the level of damage and destruction which has been inflicted by Israel on the Jenin refugee camp?

Albanese: In the latest offensive against Jenin Refugee camp, Israel carried out an aerial and ground bombardment that lasted 2 days, killed 12, including 4 children, injured over 100, damaged 80% of the housing units, and destroyed essential civilian infrastructure, including electricity lines, water sewage, roads, one school and health facilities. This is a collective punishment as all Palestinians in the area are considered potential terrorists. This annihilates the presumption of innocence and the protection of civilians under IHL.

One shall not forget that for over 75 years Jenin refugee camp has been home to Palestinian refugees who were displaced from their homeland in the regions of Akka, Haifa, and the North Galilee – areas that are close to the camp’s location whereby they could only see over their lost land, beyond Green Line in 1947-1949. Historically, the Jenin refugee camp has been a place of resistance but also of crude repression and dehumanization. During the Second Intifada, Jenin’s camp was violently bombed with entire neighborhoods razed to the ground; the construction of the separation Wall, well beyond the marked boundaries of the Green Line, gave rise to a significant economic fallout, forcing many to lose their jobs. Treating the refugees of Jenin’s camp as terrorists by default, the Israeli Occupation Forces have continuously targeted the camp through violent and deadly incursions with the aim to terrorize its residents and deter them from any act of resistance – peaceful or armed. In May 2022, the renowned American-Palestinian journalist Shireen Abu-Akleh, reporting for Al-Jazeera, was killed by the Israeli Occupation Forces while she was documenting and investigating the routine raids in the area.

As would any people under a harsh regime of alien domination made of land dispossession, forced displacement and exile, fragmentation, arbitrary killing, mass arrests and detention, pervasive violence, most Palestinians have resorted to various forms of resistance, mostly peaceful – invariably criminalized by the annexing power and often framed itself as terrorism —to bring an end to their illegal and prolonged subjugation and to realize their inalienable rights; at the same time, Palestinian armed groups grew their ranks proportionally to the violations and abuses of the occupying forces, particularly in contexts where generations of civilians have been victimized (a teenager in Gaza today has already lived through five large scale aerial bombardments killing thousands of civilians, including women and children). Palestinian armed groups make recourse to unlawful attacks and have committed acts of terror against Israeli civilians. Resistance to oppressive regimes (as well as settler-colonial situations), when compliant with IHL, can be a manifestation of last resort of the right to self-determination, recognized by international law as an inalienable right, but this doesn’t encompass indiscriminate attacks or attacks on civilians and civilian objects. Violations of international law by Palestinian armed groups too should be investigated and tried by a third and impartial court according to the fair trial rights afforded by international law. Yet, these violations should not be confused with the multiple layers of unlawfulness and the structural oppression surrounding their commission: the illegal occupation of the West Bank including East Jerusalem and the Gaza Strip, incrementally projected to annex more and more territory by use of armed force.

JURIST: You recently published a report with respect to the situation in the occupied Palestinian territories in preparation for the 53rd session of the UN Human Rights Council. Can you talk about what are the major findings of this report?

Albanese: Unable to access the occupied Palestinian territory, I conducted a non-country visit over two months and a half, including a trip to Amman and remote individual meetings, town hall meetings, and group meetings. I have met and collected the testimonies of almost one hundred experts, representatives of Palestinian and Israeli civil society, academics, doctors, journalists, lawyers, and peaceful activists.

In my second report that I presented to the Human Rights Council on July 11, 2023, I investigated the arbitrary deprivation of liberty in the occupied Palestinian territory. Since 1967, Israel has detained approximately one million Palestinians in the occupied territory, including tens of thousands of children.

Deprivation of liberty is a constant in Palestinian life under occupation: Currently, there are 5,100 Palestinians in Israeli prisons, including 165 children and approximately 1,200 of them are detained without charge or trial, including 18 children.

Without condoning violent acts that Palestinians may have committed during decades of Israel’s illegal occupation, most Palestinians are imprisoned for the exercise of basic rights and freedoms. Their criminal convictions – enacted, enforced, and adjudicated by the Israeli military – are dictated by broad and vague military orders whereby Palestinians are imprisoned for expressing opinions, gathering, making unauthorized political speeches or even merely attempting to do so. This notwithstanding, Palestinians are routinely arrested and detained without charge or trial, often based on secret evidence and for an indefinite period of time. These draconian rules compartmentalize Palestinians as a “collective security threat”, ultimately eroding their status as protected civilians.

In military courts, Palestinians are subject to proceedings that violate due process and treat them as guilty by default, tainting the legitimacy of the administration of justice by the occupying power.

As said, Israel’s “carceral regime” extends beyond prison bars. Blockades, walls, segregated infrastructure, checkpoints, settlements surrounding Palestinian towns and villages, hundreds of bureaucratic permits, and a web of digital surveillance, further incarcerate the entire Palestinian population in an “open-air panopticon”. Israel’s mass deprivation of liberty is intended to prevent the self-determination of the Palestinian people and advance Israel’s annexation of Palestinian territory. The widespread and systematic violations of international law, tantamount to war crimes and crimes against humanity and that I found in this report, cannot be remedied by improving some of its most brutal manifestations. I recommend that, to end Israel’s carceral regime and realign the State with international law, this system must be completely abolished.

JURIST: What is the current state of UNRWA—is the organization receiving adequate funding, is it able to provide necessary relief to Palestinian refugees? Are there measures you advocate be implemented to strengthen or reform UNRWA?

Albanese: I have engaged in research on UNRWA for years but not as an SR. I am not in touch with UNRWA with respect to the question raised, so I cannot comment.

JURIST: What is your response to Israel’s repeated criticism that the United Nations has a bias against Israel?

Albanese: I am firmly dedicated to documenting and reporting on the state of human rights in the oPt with integrity, objectivity, and impartiality. Impartiality is the most fundamental pillar of human rights mechanisms. Impartiality requires acknowledging the fundamental asymmetries in power, resources, and intent between Israel and the Palestinians, particularly in the oPt. It cannot be exercised while ignoring the reality on the ground, which the international community is ignoring and failing to correct. The pervasive violence in the occupied Palestinian territory largely sits on the shoulders of the occupying power that refuses to withdraw its military and colonial presence from the Palestinian territory it has occupied since 1967.

Israel often points to the existence of a plurality of international mechanisms investigating its alleged violations of Palestinians’ rights – i.e. my mandate, that of the Commission of Inquiry on Israel and the occupied Palestinian territory including east Jerusalem, the Special Committee on Israeli Practices – as evidence of the alleged ‘UN bias’. In fact, these mechanisms are the result of repeated and growing attempts to correct from within the UN’s very lack of effectiveness -as the Security Council, which should be responsible for a political solution in line with international law, has been generally paralyzed by the US veto.

For what concerns my mandate, Israel refuses to engage with it, by not responding to urgent communications, not providing feedback on my reports, not letting me enter the territory under my mandate, and refusing to hold constructive dialogue. Meanwhile, Israel relentlessly attacks human rights mechanisms, including my mandate, with false allegations of antisemitism and bias, without ever addressing one substantive issue documented. These accusations divert attention from the distressing reality on the ground.

JURIST: What can the international community do to bring an end to Israel’s occupation? What are the policies that you specifically advocate?

Albanese: In the face of Israel’s commission of internationally wrongful acts and possible international crimes against the Palestinian people under occupation, Third States are under the obligation not to recognize as lawful, aid or assist Israel’s occupation of Palestinian people, this includes not to trade with colonies in the West Bank, including east Jerusalem. The end of Israel’s illegal occupation, starting with the blockade of Gaza, must be premised on the realization of the Palestinian people’s right to self-determination. This must be accompanied by guarantees of non-repetition by Israel and reparations to the Palestinian people. To achieve this, the UN Charter affords Third States the use of diplomatic, political, and economic measures. Moreover, Third States should prosecute international crimes allegedly committed in the occupied Palestinian territory both through expediting the ICC’s investigation as well as through universal jurisdiction in their domestic courts.

In the short run, I have urged the UN and the international community to deploy an international protective presence to constrain the violence routinely used in the occupied Palestinian territory and protect the Palestinian population, which is defenseless.

Not unrelated, is the need to push back on the instrumentalization of the fight against antisemitism to shelter Israel from scrutiny and accountability. This has created a chilling effect on free speech and civic activism in defense of Palestinian rights, eroding the protection stemming from freedom of expression, and possibly undermining the fight against antisemitism worldwide. Civic space is a necessary instrument to change the situation on the ground, which will benefit both Palestinians and Israelis.

JURIST: Do you believe the greatest responsibility lies on the United States to end Israel’s occupation? If so, what policies do you advocate the United States take to bring an end to Israel’s occupation?

Albanese: Over the past 56 years, albeit not the only international actor involved in the question of the occupied Palestinian territory, the US has played a dominant role in enabling and sustaining Israel’s occupation – as already denounced by my predecessor Prof. Michael Lynk in 2021. Since the 1950s, the US has provided 150 billion US$, which equals to an average of 3.8 billion US$ yearly, in military aid to Israel along with 35 billion in economic aid. On top of this, in virtually every significant international peace initiative, the US has acted as Israel’s diplomatic sponsor at the United Nations and beyond. The US is the sole permanent member of the UN Security Council to have vetoed draft resolutions critical of the Israeli occupation, and it has done so at least 32 times. The US should, along with the rest of the UN Member States, apply the relevant countermeasures afforded by the UN Charter to bring to an end Israel’s occupation of Palestinian territory. This will be in the interest of both Palestinians and Israelis and restore the credibility of an international law-based order.