Claims resolution

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Overview

Summary

In order to pave the way for future reconciliation, all claims arising out of the conflict should be settled. Reaching a comprehensive and sustainable peace agreement requires that the wrongs committed during the conflict are addressed and redressed. Israel has been responsible for countless acts, policies and practices that violate established norms based on international law and that cause severe harm to us and our future state. Among Israel’s most notable violations are its continued violation of our right to self-determination, its growing settlement enterprise, unlawful exploitation of our water and other natural resources, environmental pollution and damages, loss of and damage to cultural property, misuse of our financial resources, and gross and systematic human rights violations. The current and ongoing suffering, severe economic underdevelopment and poverty in the occupied State of Palestine are the direct results of illegal Israeli acts and omissions committed throughout the prolonged Israeli military occupation of our state.

Resolving Claims to Help End the Conflict

Above and beyond the need to uphold the rule of law in international relations, justice and fairness necessitate that offenders be held accountable for their actions and that victims be provided with just and effective remedies. The injustices inflicted on our people continue to reverberate powerfully through our national and collective memory and will continue to impact generations to come. For any agreement to genuinely achieve a durable peace that ultimately ends the protracted Israeli occupation of Palestine, all injustices and grievances must be addressed. Redressing the wrongs will lay the foundation for reconciliation that will prevent the conflict from resurfacing in the future. There will be no reconciliation without reparations and there will be no conclusive end to the conflict without a process of reconciliation.

Recent history indicates that increasing numbers of perpetrators are acknowledging their wrongs, engaging in dialogue with their victims, and negotiating to provide reparations to their victims. Germany, for example, compensated and continues to provide reparations for victims of Nazi crimes, the United States compensated Japanese Americans for their internment during World War II, and South Africa provided remedies to victims of Apartheid. Additionally, transitional justice issues played a vital reconciliatory role in the aftermath of two genocides in Rwanda and in the former Yugoslavia, in several Latin American countries, and in Eastern European countries that restored wrongfully expropriated properties to their historical owners.

Victims of violations of human rights are entitled to reparations under international human rights and international humanitarian law. The right to reparations and compensation is enshrined in various international legal instruments, including the Hague Convention, the Geneva Convention, the International Law Commission’s Draft Articles on State Responsibility, and rulings by the International Court of Justice.

Article 3 of the Hague Convention IV, which reflects norms of customary international law states that “[a] Belligerent Party which violated the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” Article 1 of the International Law Commission’s (ILC) Draft Articles on State Responsibility provides that states are responsible for their internationally wrongful acts.

Once the international responsibility of a state is established, several legal consequences follow (Article 28), including the duty to cease the wrongful act and provide guarantees of non-repetition (Article 30), as well as the obligation to “make full reparation for the injury caused...whether material or moral” (Article 31). Reparations include restitution, compensation, and satisfaction (Article 34), and aim at wiping out all of the consequences of the violation, including by re-establishing the situation that existed before the wrongful act was committed (restitutio in integrum) and by providing compensation, where restitution is materially impossible, or when the damage may not be made good by restitution.

Compensation should cover “any financially assessable damage including loss of profits” (Article 35-36). Similarly, according to the UN Basic Principles on Reparations, which were adopted unanimously without vote by the UN General Assembly in 2005, states are required to provide reparation to victims for acts or omissions that can be attributed to the State and that constitute gross violations of international human rights law or serious violations of international humanitarian law.

On several occasions, the international community has called upon Israel to provide effective remedies to our people for Israel’s violations of internationally binding obligations. For instance, in 2004, the International Court of Justice (ICJ) ruled almost unanimously on the illegality of Israel’s actions in occupied Palestinian territory. The Court reaffirmed Israel’s responsibility for the damages resulting from the illegal construction of the Wall in our territory, including in and around occupied Jerusalem. In addition to upholding our right to self-determination and reaffirming the inadmissibility of the acquisition of territory by force, the ICJ held, inter alia, that international human rights and humanitarian laws apply; that settlements are illegal under international law; that Israel violated our freedom of movement as well as our right to work, health, education and to an adequate standard of living. Furthermore, the ICJ found that Israeli forcible transfers of Palestinians, deportations and destruction of private property are in breach of international law. Consequently, the ICJ found that Israel is under an obligation to end the violations by ceasing the construction of the Wall, dismantling what has been built, and making full reparations for the damages caused to all the natural or legal persons having suffered any form of material damage as a result of the Wall’s construction.

In addition, the UN Fact Finding Mission on the Gaza Conflict concluded in 2009 that Israel committed gross violations of international human rights norms and humanitarian law during its war on Gaza, inflicting extensive harm on our civilian population. Israel compensated the UN for damages to the international organization’s personnel and facilities. The Mission was of the view that Israel is obliged to pay similar compensation to Palestine, and called upon the international community to provide for a mechanism of compensation by Israel for damage or loss incurred by Palestinian civilians during Israel’s military operations.

Our people have endured and continue to experience severe losses due to Israel’s gross violations of international law, which have resulted in considerable suffering, profound underdevelopment, and poverty. We seek redress for the economic loss and damage resulting from the Occupation. In addition, we demand reparations for Israel’s wrongs, including restitution and full compensation for material and non-material damages resulting from the following breaches of international law:

Denial of our right to self-determination;
Damages caused by colonial Israeli settlement activity, including construction of the Wall, its associated regime and bypass roads, as well as the property-related damages and unlawful destruction of public and private property;
Depletion and illegal exploitation of our natural resources, including water, natural gas and the electromagnetic spectrum, and the failure to develop these resources for the benefit of our population;
Damage to the environment due to Israeli actions and failure to enact and enforce adequate legal protections;
Losses resulting from Israel’s misuse of our financial resources, including taxes and custom duties, and failure to use such resources for the benefit of our population;
Loss of, as well as damage to, our cultural property, which requires complete and unqualified restitution of all artifacts and other cultural property illegally removed from the occupied State of Palestine;
Violations of international human rights and humanitarian law, including the rights to equality, life, liberty, personal security, dignity, property and effective remedy, freedom from torture, arbitrary arrest and exile, extrajudicial killings, freedom of movement, and collective punishment.

Failure to address the issue of reparations risks rendering any negotiated agreement illegitimate, as it will signal a failure of the process to deal with past injustices and our rights and concerns. However, Israel also stands to benefit. Resolving claims for losses and compensation collectively, in the course of negotiations, is preferable to piecemeal future resolution and a delay to resolving all claims. In addition, rather than resolving claims one at a time, using inconsistent claims resolution standards, we are willing to agree to a comprehensive claims resolution and accounting system that covers all areas of contention.

Mechanism

To achieve the crucial objective of ending all claims, we are willing to establish a mechanism to resolve them. The mechanism can be modeled on past and existing international procedures, and should be set up under a clear and broad mandate that will address and redress all violations. The mechanism should also define different categories of claimants, the nature of the remedies, procedures for filing claims, applicable laws, procedures and standards of proof, and time limits for filing. A successful and effective implementation of the mechanism will ensure that all claims are resolved.

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Claims resolution

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Resolving Claims to Help End the Conflict

Mechanism