Reflections on indigenous peoples’ rights vis-à-vis the law of occupation^*

* The views expressed by the author are her own and do not represent the position of the Norwegian Refugee Council.

ABSTRACT

The article examines the application of the UN Declaration on Indigenous Rights (UNDRIP) beyond the confines of a State entity. Specifically, it explores the potential integration of indigenous housing, land and property protections into an occupation setting – where sovereignty is suspended and the responsibility to protect the population’s rights is vested in an external governing power. Can and should indigenous protections be integrated into the law of occupation? What implications would that entail vis-à-vis the limits that the law of occupation imposes on the occupant to introduce new legal obligations into occupied territory? The need to address this theoretical inquiry arises from the dire conditions of indigenous Bedouin in the West Bank, a Palestinian territory occupied by Israel since 1967. Historically and culturally, the West Bank Bedouin have close ties to Bedouin within Israel, the latter acknowledged internationally as indigenous people. Therefore, arguably, the West Bank Bedouin are also entitled to indigenous protections – the relevant difference being that the latter live in occupied territory. The case study of the West Bank Bedouin offers thus a unique opportunity to examine the potential relationship between the law of occupation and the indigenous rights regime as embodied in UNDRIP.

KEYWORDS:

• UNDRIP
• indigenous
• law of occupation
• Bedouin
• occupied Palestinian territory
• international humanitarian law

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Shlomit Stein is the International Law & Research Coordinator at the Palestine office of the Norwegian Refugee Council. In her work, Ms. Stein focuses on the application of IHL and IHRL in the occupied Palestinian Territory. Ms. Stein holds an LLB and a BA in humanities from the Hebrew University in Jerusalem and an LLM from Yale Law School. Previously, she was a Minerva Fellow for Human Rights at the Hebrew University and a researcher at the Israeli Democracy Institute, focusing on Israel's obligations under International Human Rights Law and on the use of proportionality by the European Court of Human Rights.

Notes

* The views expressed by the author are her own and do not represent the position of the Norwegian Refugee Council.

1. An exceptional publication which draws attention to the topic is: Norwegian Refugee Council, Bedouin Rights under Occupation: International Humanitarian Law and Indigenous Rights for Palestinian Bedouin in the West Bank, (November 2015) (‘NRC report’). In its advisory opinion on the Western Sahara, the ICJ addressed land rights of nomadic people in occupied territory. Yet, it did not do so in specific reference to the law of occupation nor to the international indigenous peoples framework, whose main instruments (ILO Convention no.169 and UNDRIP) did not exist at the time. See: Western Sahara, Advisory Opinion, ICJ GL No 61, [1975] ICJ Rep. 12 (ICJ 1975), October 16, 1975.

2. International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, art.43, 18 October 1907, http://www.refworld.org/docid/4374cae64.html (‘HR’) (visited 30 January 2018).

3. UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, http://www.refworld.org/docid/471355a82.html [accessed 30 January 2018] (‘UNDRIP’).

4. NRC report, supra n. 1 at 9; UN Office of the High Commissioner for Human Rights, (24 August 2016), Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and the occupied Syrian Golan - Report of the Secretary-General A/71/355, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/71/355 (‘Bedouins living in Area C are the most affected by demolitions and at risk of forcible transfer.’ (p.22)) (visited 1 February 2018).

5. UN General Assembly, (August 2011) Report of the Special Rapporteur on the Rights of Indigenous Peoples, 24–31, A/HRC/18/35/Add.1.

6. See: NRC report, supra n. 1 at 28–32.

7. International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27 June 1989, C169, http://www.refworld.org/docid/3ddb6d514.html (visited 30 January 2018) (‘ILO 169’).

8. Oslo accord II, concluded in September 1995, divided WB territory into three categories. Area A which includes the Palestinian cities (constituting some 18% of the WB) was assigned to full civil and security Palestinian Authority (PA) control. Area B, most of the built-up areas of the Palestinian villages, (22%) was placed under full Palestinian civil authority, yet remained under Israeli security control. Area C which included the settlements, the main roads, and extensive rural areas (60%), remained under Israeli civil and security authority. Certain civilian powers in Area C were transferred to the Palestinian Authority, yet security and land-related issues (such as planning and building, nature reserves, etc.) remained under full Israeli control. Initially, the division into Areas A, B and C was not intended to last more than five years. Between 1995–2000, the divisions changed multiple times. Since 2000, no official changes to these areas has been made.

9. Bimkom, The Bedouin Communities East of Jerusalem – A Planning Survey: Characteristics of the Bedouin Localities East of Jerusalem, http://bimkom.org/eng/wp-content/uploads/jahalin/character.htm. (visited 1 February 2018).

10. Oxfam, Towards Sustainable Food Security in the Occupied Palestinian Territory: Strengthening rangeland governance (April 2017).

11. For UNRWA’s (United Nations Relief and Works Agency for Palestine Refugees in the Near East) eligibility criteria, see: https://www.unrwa.org/ (visited 1 February 2018).

12. IDP protections are developed in soft law documents such as the UN Refugee Agency Guiding Principles on Internal Displacement, (September 2004) E/CN.4/1998/53/Add.2, http://www.unhcr.org/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html

13. Explanation about the annexation of EJ.

14. NRC report, supra n. 1 at 11.

15. International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, http://www.refworld.org/docid/3ae6b36d2.html (visited 30 January 2018) (‘GC IV’), art.4:

Persons protected by the Convention are those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Party to the conflict or Occupant of which they are not nationals … 

16. The Israeli High Court of Justice has acknowledged that the HR have a customary status. As to the provisions of GC IV, some have been held by the court to be customary (art. 23 on free passage of humanitarian consignments; art. 64 on penal legislation; and art. 78 on security measures and internment), while others –not (art. 49 is not considered by the court as customary, at least to the degree that it prohibits individual deportations of persons who constitute a security threat).

17. HR, supra n. 2; GC IV supra n. 15; International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, http://www.refworld.org/docid/3ae6b36b4.html (‘AP I’); International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, http://www.refworld.org/docid/3ae6b37f40.html (‘AP II’) – (visited 30 January 2018).

18. J.M. Henckaerts and L. Doswald-Beck/ICRC, ‘Customary International Humanitarian Law’, CUP 2005, (Customary IHL), vol. 1, at 299 et seq.

19. Vaios Koutroulis, ‘The Application of International Humanitarian Law and International Human Rights Law in Situation of Prolonged Occupation: Only a Matter of Time?’ International Review of the Red Cross 94, no. 885 (Spring 2012): 165, 194–20 and the sources cited there.

20. E.g.: Meron, The Humanization of International Law (Pub Info. 2006); ‘The Complex Relationship Between the Geneva Conventions and International Human Rights Law’ in The 1949 Geneva Conventions: A Commentary, eds. A. Clapham, P. Gaeta and M. Sassòli (Oxford: OUP, 2015) (‘Clapham/Gaeta/Sassòli’) 701–35; Noam Lubell, ‘Human Rights Obligations in Military Occupation’, International Review of the Red Cross 94, no. 885 (Spring 2012) (‘Lubell’); Milanovic, ‘The Lost Origins of Lex Specialis: Rethinking the Relationship Between Human Rights and International Humanitarian Law’, in Theoretical Boundaries of Armed Conflict and Human Rights, ed. Jens David Ohlin, (Cambridge University Press).

21. For a summary of relevant international practice see: Customary IHL, supra n. 18 at vol. 1, 305 et seq.

22. ICJ Wall advisory opinion, supra n. 20, paras. 102 et seq.

23. HR, art.23; HR, art. 56; GC IV,Art.53 IV GC; AP I, art. 54(2) (which has acquired the status of customary law); GC IV, art.147 enumerates ‘extensive destruction and appropriation’ as a grave breach. As such, it is also included among the war crimes under the ICC Statute (Art.8(2)(a)(iv)).

24. HR, art. 46: ‘ … Private property cannot be confiscated.’ Meaning that only public moveable property of the adversary, or private property that is in the actual service of the adversary, may be subject to confiscation, see; Yutaka Arai-Takahashi, Protection of Private Property, Chapter 71,1522 in: Clapham/Gaeta/Sassòli, supra n. 21 (‘Arai-Takahashi’).

25. HR, supra n. 2, art.52.

26. HR, supra n. 2, art.55.

27. Those not identical, the two formulations are interpreted as setting out the same standard for exception based on military necessity, see: Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), 196–7 (‘Dinstein’).

28. Dinstein, supra n. 28 at 198.

29. Dinstein, supra n. 28, at 230.

30. ICRC, Occupation and international humanitarian law: questions and answers, August 4, 2004, https://www.icrc.org/eng/resources/documents/misc/634kfc.htm

31. Dinstein, supra n. 28 at 231.

32. Dinstein, supra n. 28 at 225.

33. Dinstein, supra n. 28 at 225.

34. HCJ 285/81, El Nazer et al. V. Commander of Judea and Samaria et al., 36(1) PD 701, 704 (in Hebrew).

35. Dinstein, supra n. 28 at 214.

36. Dinstein, supra n. 28 at 215–6.

37. HCJ 9717/03, Na’ale-Association for Settlement in Samaria of Employees of the Israel Aircraft Industry v. the Higher Planning Council in Judea and Samaria, 58(6) PD 97, 102–3 (the Israeli HCJ ruled that the opening of a new quarry in the WB was consistent with HR 55 since its product would be used for local works) (‘the Quarry case’). For additional analysis of this trend in Israeli HCJ jurisprudence, see: Kretzmer, The Occupation of Justice (2002), 77 (‘Kretzmer’), 57–72 and A. Gross, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press, 2017) (‘Gross’), 46–51.

38. Dinstein, supra n. 28 at 219, discussion in para. 517.

39. AP I, supra 17, art.54(2).

40. Lea Brilmayer and Geoffrey Chepiga, ‘Ownership or Use? Civilian Property Interests in International Humanitarian Law’, Harvard International Law Journal 49, no. 2 (Summer 2008): 413, 426.

41. Id., 417.

42. Following their 1948 displacement from the Naqab, the Bedouin settled on public lands (which were held at the time by Jordan) or private lands, and typically did not possess ownership title.

43. Arai-Takahashi, supra n. 25 at 1533.

44. E.g. IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001, Series C, No. 79 (2001), paras. 148–9 (the first time that the Inter-American Court has issued a judgment in favour of the rights of indigenous peoples to their ancestral land). Returning to the setting of occupation, Arai-Takahashi adds that ‘in occupied territories, an occupier’s exploitation of natural resources may clash with indigenous peoples’ collective ownership of such resources, which they deem essential for their ancestral heritage and cultural identity.’ (ibid, 1533).

45. GC IV, art.49; See also: AP I, art.17. Commentary to Art.17: 4854 Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group.

46. Customary IHL, supra n 18, vol.1at 462 et seq., Rule 130.

47. Prosecutor v. Krnojelac, ICTY, Trial Chamber, IT-97-25-T, 2002, para. 475 (footnotes omitted) (‘Forced’ is not to be interpreted in a restrictive manner, such as being limited to physical force. It may include the ‘threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.’). See also Prosecutor v. Stakic, ICTY, Appeals Chamber, IT-97-24-T, 2006, para 281.

48. The French version of the provision, which is he only authoritative one, enjoins the occupying power to restore and ensure ‘l’ordre et la vie publique’, which means that it is obliged to facilitate a normal civil life.

49. Michael Bothe, in Clapham/Gaeta/Sassòli, supra n. 21 at 1469 et seq.

50. Gilles Giacca, ‘Economic, Social and Cultural Rights in Occupied Territories’, Chapter 70, 1493 in: Clapham/Gaeta/Sassòli’, id, supra n. XX (‘Giacca’).

51. Lubell, id, supra n. 21 at 329; Giacca, supra n. 51 at 1503.

52. Giacca, supra n. 51 at 1504.

53. Giacca, supra n. 51 at 1514.

54. Jérémie Gilbert, ‘Lands Rights as Human Rights: the Case for a Specific Right to Land’, SUR 18 (2013): 115–35, 115 (‘Gilbert 1’).

55. UNDRIP, supra n. 3, arts.25–6.

56. See also ILO 169, supra 7, art.17(1).

57. Ibid, arts.13(2) and 15.

58. UNDRIP, supra n.3, arts. 25–9

59. See examples given in: Jérémie Gilbert, ‘Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples’, International Journal on Minority and Group Rights 14 (2007): 207–30, 225.

60. ILO 169, supra n. 7, art.13 (1).

61. Gilbert 1, supra n. 55 at 120.

62. Gilbert 1, supra n. 55 at 120.

63. Jérémie Gilbert, ‘Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights’, Human Rights Law Review (2007) (‘Gilbert 2’), 1, 17. This approach was taken by the ICJ in the Western Sahara case. The ICJ acknowledged the relationship of the Sahrawi nomadic people to territories across which they migrated. However, ‘the Court did not acknowledge that the nomadic peoples living in the Western Sahara had a legitimate claim to the territory … the ICJ did not consider nomadic peoples as potential owners of their territories.’ (there, 9)

64. UNDRIP, supra n. 3, art.10; ILO 169, supra n. 7, art.16.

65. Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, American Journal of International Law 100, no. 580 (2006): 582–5.

66. Gross, supra n. 38 at 38.

67. Gross, supra n. 38 at38

68. Gross, supra n. 38 at 38.

69. ICRC, Expert Meeting on the Law of Occupation and Other Forms of Administration of Territory (Geneva: ICRC, 2012). Arguing that also as a matter of practice, unilateral transformative occupation has not been accepted, see: Gregory H. Fox, ‘Transformative Occupation and the Unilateralist Impulse’, International Review of the Red Cross 94, no. 885 (Spring 2012): 237.

70. For a discussion on ‘sincerity’, see: E. Benvenisit, The International Law of Occupation. (Oxford: Oxford University Press, 2nd edn, 2012), 15–6 (‘Benvenisti’).

71. Benvenisti, supra n. 71 at 28–9, fn.78

72. The quarry case, id., supra n. 38.

73. Benvenisti, supra n. 71 at 14.

74. Benvenisti, supra n. 71 at 14.

75. Benvenisti, supra n. 71 at 14.

76. Benvenisti, supra n. 71 at 105–6.

77. David Scheffer, ‘Beyond Occupation Law’, American Journal of International Law 97 (2003): 842, 851.

78. NRC report, supra n. 1 at 37.

79. NRC report, supra n. 1 at 37 argued there in respect to the WB Bedouin.

80. Gilbert 2, supra n. 64 at 24.

81. Id., 17; General Comment No. 23: Article 27 (Rights of Minorities), para.7, HRI/GEN/1/Rev.7 at 158; 1–3 IHRR 1 (1994).

82. UN Educational, Scientific and Cultural Organisation (UNESCO), Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, (specifically arts.5, 18), http://www.refworld.org/docid/40422c914.html (visited 1 February 2018); AP I, supra n. 17, arts.53, 85(4)(d); AP II, supra n. 17, art.16.

83. In the context of the oPt, the UN Office for the Coordination of Humanitarian Affairs in the oPt refers to the situation in the oPt as a ‘protracted protection crisis’, encompassing short as well as long term humanitarian needs, see: 2017 Humanitarian Needs Overview for the occupied Palestinian territory, https://www.ochaopt.org/content/2017-humanitarian-needs-overview-occupied-palestinian-territory (visited 1 February 2018).

84. Giacca, supra n. 51 at 1514.

85. For the severe restrictions on the right to protest in the oPt, making it virtually impossible, see: S. Stein and F. Petersen, ‘Protest and Its Suppression in the Occupied Palestinian Territories and in Turkey’, Journal of International Law of Peace and Armed Conflict 28, no. 1 (2015): 4.

86. together with the prohibition to deprive protected persons of their rights through agreements concluded between the occupant and the ousted government, see: GC IV, supra n. 15, art.47 (‘inviolability of rights’).

87. UNDRIP, supra n. 3, arts. 3 and 4 read in conjunction with HR, supra n. 2 art.46.

88. International law recognizes a right to secession for people under colonial rule or foreign occupation. Apart from these circumstances, it has been argued that a right to ‘remedial secession’ may in exceptional cases be established when a state is oppressing the people, discriminating against them, violating their human rights and not allowing them freely to be involved in the politics and internal affairs of the state, see: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010, http://www.refworld.org/cases,ICJ,4c5151002.html (visited 1 February 2018); Reference Re Secession of Quebec, [1998] 2 SCR 217; Opinio Juris, Ukraine Insta-Symposium: Intervention in the Ukraine by Invitation, http://opiniojuris.org/2014/03/10/ukraine-insta-symposium-intervention-ukraine-invitation/ (visited1 February 2018).

89. Benvenisti, supra n. 71 at 184 and the UN instruments cited there.

90. Occupation per se is not deemed illegal even though the occupant’s government in the occupied territory does not represent the People subject to its rule. Nonetheless, an occupation may be considered illegal if the occupant ‘holds out in bad faith’ and refuses to negotiate the terms of its decline, see: Benvenisti, supra n. 71 at 187.

91. For example, during their occupation of the WB, between 1949–1967, the Jordanian authorities allowed the Bedouin to graze and use state land and practice their traditional lifestyle with minimal disruption. Such Jordanian policies and practices should be respected by the Israel military, in its administration of the oPt.

92. Per the Bedouin case, Israel is not a party to ILO 169, nor has it signed on to UNDRIP. Thus, different to obligations under IHRL treaties to which it is party, it is not legally bound to apply the protections incorporated in these instruments. In cases where the occupant state is a party to these instruments, (particularly ILO 169 as it is of binding legal force) the rationale discussed above re IHRL treaty obligations could apply as well, namely, extraterritorial applicability in territories where the state has effective control over.