The Mass Forced Return of Afghan Refugees
(Erbil) – Iraqi forces have forcibly displaced at least 125 families said to have familial ties to affiliates of the Islamic State (also known as ISIS), Human Rights Watch said today.
Sunni tribal groups (known as the Hashad al-Asha'ri), within the Popular Mobilization Forces (known as the PMF or Hashd al-Sha'abi), which are under the control of Prime Minister Haider al-Abadi, and Iraqi soldiers forced the families out of their homes following the passage of a decree issued by local authorities. The families, all from Salah al-Din governorate, are being held against their will in a camp functioning as an open-air prison near Tikrit. The PMF also destroyed some of the families’ homes.
“While politicians in Baghdad are discussing reconciliation efforts in Iraq, the state’s own forces are undermining those efforts by destroying homes and forcing families into a detention camp,” said Lama Fakih, deputy Middle East director at Human Rights Watch. “These families, accused of wrongdoing by association, are in many cases themselves victims of ISIS abuses and should be protected by government forces, not targeted for retribution.”
In August 2016, the Salah al-Din governorate council passed a decree stating that anyone proven to have been complicit or affiliated with ISIS has no right to return to the governorate. The decree also orders the expulsion of immediate relatives of ISIS-members from Salah al-Din for 10 years to life, and says that they are only allowed to return if they are deemed “safe.” The decree establishes a committee to seize ISIS-affiliates’ property and suspend their, and their families,’ provision cards. Families that kill their ISIS-affiliated relatives, or hand them over to the Iraqi authorities, are exempted.
One woman from al-Shakrah village, three kilometers south of al-Shirqat, said that PMF fighters forced her and her relatives from their home on January 7, 2017, because her husband’s brother had joined ISIS. She said that the fighters “forced our whole family of 14 people out and onto the truck. They didn’t let us grab even a change of clothing.”
Two women from the village of al-Aithah said that local PMF forces destroyed hundreds of homes with explosives after they retook the area on September 21, targeting not only some of the families they thought to be affiliated with ISIS, but also some families that had fled because of the fighting. Satellite imagery reviewed by Human Rights Watch showed that between September 23 and October 23, 220 homes in the village were destroyed by explosives and fire.
Under the laws of war, parties to a conflict may only attack military objectives. The intentional or wanton destruction of civilian property is unlawful unless the property is being used for a military purpose. Destroying property merely to punish the population is always prohibited.
Iraqi federal authorities should investigate any intentional destruction or looting of civilian property, punish those responsible – including those in command control at the time of such acts who failed to prevent the crimes – if abuses are found, and compensate victims, Human Rights Watch said.
Human Rights Watch visited the Shahama camp for displaced people, 13 kilometres north of Tikrit, on February 3, to interview families affected by the decree. Hussein Ahmed Khalaf, the camp manager, said that 362 families were there, of whom 237 had fled Hawija, a city 50 kilometers west of Kirkuk that is still under ISIS control. Those families had arrived when the camp opened at the beginning of January.
He said that over the next month, 125 families from the al-Shirqat area were brought to the camp. Human Rights Watch interviewed 14 people forcibly displaced with their families to the camp. They all said that PMF fighters, in the presence of the Iraqi Security Forces (ISF) with army vehicles, had forced them out of their homes. They said that they were prohibited from leaving the camp and from having mobile phones.
In a Salah al-Din news broadcast in January, Brigadier General Juma Enad Sadoon, the Salah al-Din operational commander for the ISF, said that he ordered the forced displacements of immediate relatives of ISIS members following the passage of the decree by the Salah al-Din governorate council. He said “ISIS families” were identified by other residents and through intelligence gathered by the security forces. He said he gave the order because of concerns about family members communicating with their ISIS relatives fighting in Mosul and other fronts and because of complaints from the relatives of victims of ISIS abuses. He said he would not stop displacing these families.
But most families who spoke to Human Rights Watch either denied they had a relative in ISIS or said that if they did, this family member was as distant as a cousin or brother-in-law.
Both videos feature a female commander known as Um Hanadi of the local PMF of al-Shirqat known as the Group of Um Hanadi for Special Tasks (Tashkeel Um Hanadi La Mohmat al-Khasah). In one video, she and a group of armed forces are loading families they refer to as “ISIS families” onto at least two Iraqi army trucks with military license plates. The video shows at least two Iraqi military commanders, recognizable because of their red berets. One fighter and the cameraman identify themselves as members of the Iraqi military’s Division 17, Brigade 60. In the other video, Um Hanadi says to the camera, “It is an honor for me to clean and cleanse al-Shirqat with these elite forces.”
A New York Times article from January 29 about the camp quotes Salah al-Din’s deputy governor, Amar Hekmat, as saying that the aim behind the forcible displacement is, “to defy the terrorists and send a stern message to the families.” Salah al-Din’s First Deputy Governor Khazhal Hamad is quoted in the same article saying that displacing the families was a way of protecting them from retaliatory attacks by neighbors who lost family members to ISIS. “There are hostile feelings towards these people, and these feelings can affect the civil peace we are trying to achieve,” he said.
A February 28 response from the Ministry of Foreign Affairs’ human rights office to Human Rights Watch’s findings stated that the displacement was carried out by the Salah al-Din operational command in order to protect the families from revenge attacks; for security reasons linked to continued suicide attacks; and because some of these families may be sharing information about ISF positions with ISIS. It stated that the operational command was mandated with holding and protecting the families in the camp. Representatives of the PMF did not respond to questions sent by Human Rights Watch.
The article goes on to say that Prime Minister Haider al-Abadi sent a letter in late January to the local governor criticizing the displacement and ordered governorate and federal government officials to resolve the issue. There was no indication he had called for the punishment of armed forces under his command that participated in it. Iraqi federal authorities including al-Abadi should continue to condemn the forcible displacement of these families and censure any state forces that participate in the practice, Human Rights Watch said.
Two of those interviewed by Human Rights Watch said that Salah al-Din’s Governor Ahmad Abdullah al-Jabouri came to the camp in late January and told them that he was working on a solution to secure their release, but that nothing had happened since.
It is a basic international standard that punishment for crimes should only be imposed on people responsible for the crimes, after a fair trial to determine individual guilt. Imposing collective punishments on families, villages, or entire communities is strictly forbidden and can itself be a crime, especially if it results in forced displacement.
Local governorate councils should reverse any decrees targeting the families of alleged ISIS affiliates in violation of international standards. Iraq’s parliament should issue a decree calling on the local governorate councils to rescind the decrees and on armed forces to cease the forced displacements, reiterating the unlawfulness of these displacements and stipulating that any armed forces who participate in the displacements should be censured.
“There is growing concern among parliamentarians and ministers about the forcible displacement of so-called ISIS families and what this will mean for reconciliation efforts in areas recently taken back from ISIS,” Fakih said. “That concern needs to translate into action before these destructive policies are mimicked across the country.”
Local Justifications for Displacement
Local leaders from Salah al-Din told Human Rights Watch that the forcible displacement of families of alleged ISIS affiliates was in line with jalwa, an Arabic term for eviction and a principle that entails the forced relocation of a clan to avoid friction if one of its members murders someone from another clan living in the same area.
Other local officials are taking similar measures to expel so-called “ISIS families.” In July, the Babylon governorate council passed a decree calling on authorities to demolish the homes of anyone proven to have participated in terrorist activities, deport their families from the governorate, and to authorize legal procedures against the families proven to have “concealed” their ISIS-affiliated relatives. Families from Anbar face similar difficulties. In July, local leaders issued a covenant saying that people who “promoted” ISIS are not allowed to return until their charges are reviewed. Individuals who did not renounce relatives who supported ISIS are only allowed to return home “when this situation stabilizes,” they said.
Identified with ISIS
Four of the 14 people Human Rights Watch interviewed were from al-Shakrah village and were brought to the Shahama camp on January 7 and January 26. Three were from al-Aithah village, 11 kilometers north of al-Shirqat, and were brought to the camp in early January. The rest were from three neighborhoods of the town of al-Shirqat and were brought to the camp on January 26, 28, and 29. Some were brought alone, while others said they were loaded into approximately 30 vehicles, some with up to 11 other families. Several said they had only the most tangential connections, or no connections at all, to people who had joined ISIS.
One couple said that their cousin, a member of Um Hanadi’s PMF group with whom they had a running land dispute for years, was the one that brought forces to their home and made them leave. They said they had no links to ISIS. Another woman said she was a nurse, and had continued her work at the local hospital under ISIS because she was the only female nurse and felt it was her duty to provide health care for women. Fighters brought her and her family to the camp, saying it was because she had been affiliated with ISIS, she said.
One widowed woman said that ISIS fighters forced her to marry off her 14-year-old daughter to one of their fighters after they took her village in 2014. According to the mother, the daughter married the fighter, who was subsequently killed, and gave birth weeks before she and the rest of her family were forcibly displaced. The woman said PMF and Iraqi soldiers displaced her and her family, including her daughter and grandchild, to the camp because of the forced marriage.
“They [the PMF] told me: ‘You gave your daughter to ISIS,’” she said. “But they do not understand our situation with ISIS and the pressure they put on us. We couldn’t say anything to them…I had no choice. I couldn’t say anything…ISIS became the government ruling over everyone. They’ve gone to war with every country. What could I do as a woman to oppose them?”
“As they drove us from al-Shirqat they were celebrating, it was like a victory for them,” said a man from the Jamia neighborhood. He said PMF and ISF jointly rounded up 28 people from his area and brought them to the camp on a convoy of dozens of cars, blaring celebratory music from their loudspeakers:
We saw all these cars and trucks suddenly pull up in our village, and I saw several Hashad fighters [PMF] knock on the door of my neighbors. Their son had been with ISIS. They forced them out immediately and into one of the trucks. Then came the knock at our door, and my mother-in-law opened and told the fighters that her son’s family, my husband’s brother, who had joined ISIS, lived down the road. They said to her, “But you are also related to him.”
Shahama Camp Conditions
Human Rights Watch observed that the families from Hawija and al-Shirqat in the Shahama camp are housed in tents in separate areas of the camp. The camp manager said that this was because of concerns over possible tensions between people who left Hawija voluntarily and those forcibly displaced from al-Shirqat over suspected family ties to ISIS suspects.
Shahama camp residents are not allowed to leave or to have mobile phones, and visitors are restricted. Residents at the camp from the initial wave of families from Hawija told Human Rights Watch that until the al-Shirqat families arrived they had been allowed to have phones, and leave the camp at will.
The camp receives assistance and support from four international aid organizations, but two aid workers said that most aid groups would not support a camp that is functioning as a holding site for forcibly displaced people, rather than a camp to which displaced people have gone voluntarily. Having visited about a dozen camps in Iraq and the Kurdistan Region of Iraq, Human Rights Watch researchers observed significantly worse conditions in the Shahama camp than in the other camps it had visited. According to a senior aid worker and the camp manager, the camp has no clinic, no school, and lacks adequate sanitation services and food, water, and heating oil.
Destruction and Looting
A local sheikh from the village of al-Aithah interviewed in the Shahama camp said the PMF arrived three days after the Iraqi military retook the village from ISIS on September 19. Two women from the village said that the PMF forces destroyed hundreds of homes. One said her home was included and the other that she witnessed the destruction:
I saw them destroying the houses. They would destroy around 15 homes a day. For about 15 days the destruction didn’t stop in the village. My house was not destroyed when the army came, but…lots of neighbors’ homes were destroyed by the PMF. It was the local PMF destroying the homes. I saw them and know them personally as being from the local PMF.
She said the PMF targeted the homes not only of some families thought to have links to ISIS, but also some of those who had simply fled the area out of fear.
Local residents said that as far as they were aware, there were no airstrikes on the village after it was retaken, so the destruction could not have been a result of aerial attacks, and there was seemingly no military necessity for the destruction, meaning it most likely constituted a war crime. “We want the Iraqi government to show mercy on these women and children,” one of the women said. “Don’t act like ISIS, by destroying homes and displacing families.”
Several members of the displaced families also said PMF members looted their property. One woman from Tal al-Jumaila neighborhood in al-Shirqat said that the morning before she was displaced, PMF confiscated her cow without giving any reason. A man from Tal al-Jumaila neighborhood and another from al-Shakrah village both said fighters took their cars. The rest of the interviewees said that because they did not have access to their phones, they did not know what had happened to their property since they left.
Seven people interviewed said that ISF had arrested one or more of their family members, in one case a 15-year-old boy, on suspicion of ISIS affiliation either at their homes or at a checkpoint in the area, some as early as August. Six had not heard from their relatives since and all of them said that because of the ban on phones, they were unable to make any calls to see if they were still in detention or had access to a lawyer.
One man from al-Shakrah said he had been detained by ISF at a checkpoint near Tikrit because his brother had been an ISIS member, and was beaten for a day with electric cables while guards asked him how he could have shared a home with an ISIS fighter. That night, he said, they transferred him to the Salah al-Din operations room, and then to a prison in Tikrit. A few weeks later he was taken before a judge and ordered released, after which he returned to al-Shakrah, he said. On January 7, he and his family were forced to relocate to the camp.
Another al-Shakrah villager said that on September 24, 2016, more than 15 Iraqi soldiers and PMF members who were in the village told all the men and boys ages 15 and over to gather at the local school to be screened:
I gathered there with my 15-year-old son, as we were told. A soldier called out three names of men from the village and detained them. Then about 20 fighters wearing PMF patches brought 10 more men with masked faces to us, and started pointing at people at random, while the ISF stood by and watched. The PMF took away the 14 men and one boy, my own son, whom they pointed at, loading them onto military trucks. One PMF fighter was filming the group of detainees on his phone as they waited to load the trucks, and ordered them to bark like dogs.
They brought his son back after 28 days. The family confirmed with Iraqi army officers that his son was not on a wanted list, but five days later, PMF came to the home with a masked man who said the boy was affiliated with ISIS and detained him again, the father said. The father said he has heard nothing from him since and that on January 7, local PMF members in the village came to their home and said they were an “ISIS family” and had to get onto the PMF trucks and go to the camp.
Iraqi federal authorities should make efforts to inform family members about the location of all detainees. Iraqi federal authorities should make public the number of fighters and civilians detained, including at checkpoints, screening sites, and camps during the conflict with ISIS, and the legal basis for their detention, including the charges against them. They should ensure prompt independent judicial review of detention and allow detainees access to lawyers and medical care and to communicate with their families, Human Rights Watch said.
After 25 years of vicious conflict that has cost countless lives and displaced millions of people, peace has finally broken out in south-central Somalia — at least that's what Kenya says. And the UN refugee agency, the United Nations High Commission for Refugees (UNHCR) has joined Kenya to tell the world it should now focus on helping as many refugees as possible to return home.
But I recently spoke with some of the estimated 320,000 Somali refugees in Dadaab, Kenya, the world's largest refugee camp. And it's clear that peace is the last thing some of those signing up for UNHCR's $400 repatriation cash handout are discovering.
A number of refugees told me they had returned destitute to destroyed Somali villages without health care provision and schools, or faced danger as armed groups continue to clash in and around their villages, including towns. After doing their best to survive, they fled back to Kenya, once again as refugees.
She told me: "After two days back home, fighting broke out between government troops and al-Shabab [armed Islamist group]. I could hear the bullets. My children were so scared. They just ran around, trying to get out of the house." The following day, Amina fled to the closest city, Kismayo. She had no relatives there but hoped she'd find safety and work to feed her children. She found neither.
She and her family barely survived for nine months with other displaced civilians in Kismayo's appalling internally displaced persons' camps. After a man in a government uniform raped her, a common occurrence in the unprotected and aid-starved camps across the country, Amina gave up and 10 months ago begged her way back to Dadaab.
But her ordeal didn't end there. The Kenyan authorities have refused to re-register her and her children as refugees, and UNHCR has not reactivated her ration card or given her any food.
"If we send 1,000 people home under the voluntary repatriation agreement but we then register 1,000 new arrivals, we would not get the job done," a Kenyan government official in Dadaab told me
Kenya, Somalia and the UNHCR had signed an agreement in November 2013 on the "voluntary repatriation" of Somali refugees. It says that both countries and the UN would make sure that Somalis return voluntarily and safely and would get help to resettle back home. A few months later UNHCR said that "the security situation in many parts of ... Somalia [is] volatile [and] protracted ... conflict has had devastating consequences, including massive displacement, weakened community structures, gross human rights violations and the breakdown of law and order".
But Kenya has repeatedly referred to this agreement as evidence that it is time for all Somalis to go home, stressing that the UN agency should help Kenya "expedite" refugee repatriation.
Somali refugees have a collective memory of previous repeated attempts by Kenyan security forces to coerce "voluntary" returns. In late 2012, Kenyan police in Nairobi unleashed appalling abuses in an effort to enforce an illegal directive to drive tens of thousands of urban Somali refugees into the Dadaab camps and from there back to Somalia. In April 2014, Kenyan security forces, primarily police, carried out a second round of abuses against Somalis in Nairobi and then deported 359 a month later without allowing them to challenge their removal.
In May 2016, Kenya announced that "hosting refugees has to come to an end", that Somali asylum seekers would no longer automatically get refugee status and that the Department of Refugee Affairs, responsible for registering and screening individual asylum applications, would be disbanded.
So far, thankfully, the Kenyan police in Dadaab appear to have been acting properly and the refugees told us they had not been harassed or directly coerced. But they are all aware that the government intends to close the camp by the end of November. Everyone we spoke to expressed the fear that those who do not take the voluntary repatriation assistance package now will be forced back later this year with nothing.
Since mid-2015, Amina and at least another 4,000 Somali refugees have either returned to Kenya after facing conflict and hunger back home or fled to Dadaab for the first time.
But with refugee registrations now closed, Amina and the others won't get food aid. Their survival will depend on the kindness of neighbours or relatives whose own rations were slashed last year by a third because of a funding shortfall. Amina and other returnees and new arrivals will also be the first to face arrest and deportation for "illegal presence" if Kenya shuts down Dadaab in three months.
International and Kenyan law require the authorities to make sure that anyone seeking asylum in Kenya is fairly heard and, if found to need protection, gets it. As long as Kenya continues to shred its commitments, Amina and thousands of others like her will languish hungry and destitute in legal limbo and wake up every morning wondering whether they are about to be deported back to the dangers that many have repeatedly fled and still fear.
(New York) – The massive refugee crisis demands an unprecedented global response. At two summits on September 19 and 20, 2016, at the United Nations, world leaders should take bold steps to share responsibility for millions of people displaced by violence, repression, and persecution.
Leaders will gather in New York to discuss providing greater support to countries where refugees first land, just as many of those countries are at breaking point. There is a grave risk to the bedrock foundation of refugee protection, the principle of nonrefoulement – not forcibly returning refugees to places where they would face persecution and other serious threats. People are fleeing violence in Afghanistan, Burma, Democratic Republic of Congo, Eritrea, Honduras, Iraq, Somalia, and Syria, among others.
“Millions of lives hang in the balance,” said Kenneth Roth, executive director of Human Rights Watch. “This is not just about more money or greater resettlement numbers, but also about shoring up the legal principles for protecting refugees, which are under threat as never before.”
This year, Human Rights Watch has documented Turkish border guards shooting and pushing back civilians who appear to be seeking asylum; Jordan refusing entry or assistance to Syrian asylum seekers at its border; Kenya declaring that it will close the world’s largest refugee camp in November and pushing Somalis to return home despite potential danger; and Pakistan and Iran harassing and deregistering Afghan refugees and coercing them to return to a country in conflict.
The UN General Assembly has convened the September 19 summit “with the aim of bringing countries together behind a more humane and coordinated approach” to refugees. The final statement, already drafted, is a missed opportunity to widen the scope of protection and limits expectations for concrete, new commitments. However, it affirms refugee rights and calls for more equitable responsibility sharing. Given the scale of the refugee crisis and populist backlash in many parts of the world, this affirmation should be the basis for collective action, Human Rights Watch said.
On September 20, US President Barack Obama will host a “Leader’s Summit” to increase commitments for aid, refugee admissions, and opportunities for work and education for refugees. Governments are expected to make concrete pledges toward goals of doubling the number of resettlement places and other admissions, increasing aid by 30 percent, getting 1 million more refugee children in school, and granting 1 million more adult refugees the right to work. Though the participants have not been announced, 30 to 35 countries are expected to attend. Canada, Ethiopia, Germany, Sweden, and Jordan will join the United States as co-facilitators.
Boost Humanitarian Aid to Countries of First Arrival
The vast majority of the world’s 21.3 million refugees are in the global south, where they often face further harm, discrimination, and neglect. Human Rights Watch called on countries of first arrival like Turkey, Lebanon, Jordan, Thailand, Kenya, Iran, and Pakistan, to commit to proposals to provide refugees with better access to work and education.
The world’s richest nations have largely failed to help countries on the front lines of the displacement crisis. As of September 9, UN aid appeals were 39 percent funded, with some of the worst-funded in Africa; the appeal for refugees from South Sudan stands at 19 percent. The regional refugee response plans for Yemen and Syria are funded at 22 and 49 percent.
Increase Numbers Resettled in Other Countries
Resettlement from countries of first arrival is a key way to help refugees rebuild their lives and to relieve host countries, but international solidarity is glaringly absent. In 2015, the UN refugee agency facilitated resettlement of 81,000 of a projected 960,000 refugees globally in need of resettlement. The agency estimated that over 1.1 million refugees would need resettlement in 2016, but projected that countries would only offer 170,000 places. Representatives of 92 countries pledged only a slight increase in resettlement places for Syrian refugees at a high-level UN meeting in March.
In the European Union, the arrival by boat in 2015 of more than 1 million asylum seekers and migrants – and more than 3,700 deaths at sea – laid bare the need for safe and legal channels for refugees to move, such as resettlement. However, many EU countries, including Austria, Bulgaria, and Hungary, are focused primarily on preventing spontaneous arrivals, outsourcing responsibility, and rolling back refugee rights.
A July 2015 European plan to resettle 22,500 refugees from other regions over two years has resettled only 8,268 refugees, according to figures from July 2016. Most EU countries underperformed, and 10 failed to resettle a single person under the plan.
End Abusive Systems, Flawed Deals
The EU struck a deal with Turkey in March to allow the return to Turkey of almost all asylum seekers on the deeply flawed grounds that Turkey is a safe country for asylum; it is on the verge of falling apart. Australia forcibly transfers all asylum seekers who arrive by boat to offshore processing centers, where they face abuse, inhumane treatment, and neglect.
The EU and Australia should renounce these abusive policies. EU countries should swiftly adopt a proposed permanent resettlement framework with more ambitious goals and a clear commitment to meet them, Human Rights Watch said. They should share fairly the responsibility for asylum seekers arriving spontaneously, and help alleviate the pressure on Greece and Italy.
While by many measures the US leads in refugee resettlement and response to UN humanitarian aid appeals, it has been particularly slow and ungenerous in admitting Syrian refugees. And it has had notable blind spots, as with its border policies for Central American children and others fleeing gang violence and its use of Mexico as a buffer to keep them from reaching the US border.
The Obama Administration met its goal of admitting 10,000 Syrian refugees this fiscal year in the face of opposition from more than half of US governors and a lack of resettlement funds from Congress, but the US has the capacity to resettle many times that number. It should commit to meeting the Leaders’ Summit goals, which would mean doubling this year’s 85,000 total refugee admissions to 170,000.
Several other countries with capacity to admit far more refugees, including Brazil, Japan, and South Korea, have fallen woefully short. Japan admitted 19 refugees in 2015, South Korea only 42 aside from North Koreans, and Brazil only 6.
Russia resettles no refugees. The Gulf States do not respond to UN resettlement appeals, though Saudi Arabia says it has suspended deportations of hundreds of thousands of Syrians who overstay visitor visas. Most Gulf states, except Kuwait, have also fallen short in their response to Syrian-refugee-related UN appeals to fund refugee needs, according to an Oxfam analysis.
“Every country has a moral responsibility to ensure the rights and dignity of people forced to flee their homes,” Roth said. “When more than 20 million people are counting on a real international effort to address their plight, lofty pronouncements are not enough.”
Bulgaria bears a “big responsibility” for protecting the European Union’s external borders and should do so “in full respect” of migrants’ human rights, says Europe’s senior minister for migration, Dimitris Avramopoulos.
Speaking in the country’s capital, Sofia, Avramopoulos, the European commissioner for migration, home affairs and citizenship, said Bulgaria had the EU’s support as well as his “personal commitment” as it seeks to police Europe’s outer frontiers.
But can Avramopoulos really be confident that Bulgaria will respect migrants' rights in the way he hopes? Its track record suggests not.
Take the case of 16-year-old ‘Abdullah’ from Afghanistan, who experienced Bulgaria’s “respect” first hand.
“When Bulgarian police saw us, we tried to run away,” he said. “They chased us with dogs and shot at us. There were five police. When they caught us, they started beating us. They kicked me and the others wherever they could reach. They did this for about an hour and threatened us with the dogs. They took my money and mobile.”
Abdullah (not his real name) is one of several migrants and asylum seekers who told Human Rights Watch about summary returns from Bulgaria, and violence both at its borders and inside detention centers in late 2015. These are not new problems; we also documented similar abuses in April and September 2014.
Yet Abdullah’s and hundreds of others’ similar testimonies have fallen on deaf ears at EU headquarters in Brussels. While Bulgaria has the right to protect its borders, it doesn’t have the right to summarily return people to Turkey or physically abuse them. By focusing on border protection, Avramopoulos missed the chance to press Bulgaria on violence against migrants and asylum seekers.
The commission should forcefully remind Bulgaria of EU laws and standards, and urge Bulgarian authorities to investigate these credible reports of abuses and bring them to a halt. Because ignoring Abdullah’s story won’t make the allegations go away, and resorting to violence is no way to manage the refugee crisis.
Bill Frelick, director of Human Rights Watch's refugee program, monitors, investigates, and documents human rights abuses against refugees, asylum seekers, and internally displaced persons, and advocates for the rights and humanitarian needs of all categories of forcibly displaced persons around the world.
Before joining Human Rights Watch, Frelick directed Amnesty International USA's refugee program and the US Committee for Refugees (USCR), which he served for 18 years. He was the editor of USCR's annual World Refugee Survey and monthly Refugee Reports. Frelick has traveled to refugee sites throughout the world and is widely published. He taught in the Middle East from 1979-1983 and was co-coordinator of the Asian Center of Clergy and Laity Concerned from 1976-1979. Frelick has a B.A. from Oberlin College and an M.A. from Columbia University.
(Seoul) – China should immediately disclose the whereabouts of eight North Korean refugees currently detained in China, publicly pledge that none of them will be returned to North Korea, and provide them with asylum or allow departure to a third country of their choice, Human Rights Watch said today. North Koreans who are forced back after fleeing their country face a real risk of torture, sexual violence and abuse, incarceration in forced labor camps, and public executions, making them refugees sur place in the need of urgent protection.
“By now, there are plenty of survivor accounts that reveal Kim Jong-Un’s administration is routinely persecuting those who are forced back to North Korea after departing illegally, and subjecting them to torture, sexual violence, forced labor – and even worse,” said Phil Robertson, deputy Asia director. “The government in Beijing should respect its obligations under the Refugee Convention by protecting these eight North Koreans, and under no circumstances force them back to North Korea.”
Chinese government officials detained a group of eight North Koreans in mid-March 2017 during what appeared to be a random check on a road in northeastern China. A Christian pastor following the travel progress of the group told Human Rights Watch that the group had gathered in Shenyang city, in Liaoning province. Traffic police stopped their vehicle in the middle of the night, and after realizing the travelers did not have valid identification documents, took the group to a local police station.
While waiting inside their vehicle parked outside of the police station, they contacted the pastor, and sent him desperate voice messages and video recordings asking for help from Chinese President Xi Jinping and other world leaders. One of the members said, “Please, please help us. If we are sent to North Korea, we die. Please save us.” Soon after they sent those messages, the group was taken by police into the station for questioning.
Several hours later, refugees contacted “Kwon,” the pseudonym of one of the group member’s 18-year-old son, who has lived in South Korea since 2013. Then after another few hours, a member of the group contacted Kwon and told him his mother had collapsed under the pressure of the detention, and that the police had taken her to the hospital. Afterwards a Korean-speaking officer walked in and confiscated their cell phones. However, one group member hid a cell phone and later texted the pastor to tell him. The following day, the group contacted Kwon for the last time, and said the police had brought his mother back to the prison. At the beginning of April, the pastor heard from people he knows in China that the group was still in China, held close to the original location where they were detained, but he and Kwon could not get official confirmation of the exact whereabouts of the group. The pastor and Kwon fear the group could face immediate forced return to North Korea, saying they believe most repatriations happen within two months after detention.
The pastor said among the group are two women who said they had previously been sold to Chinese men and faced beatings at their hands. Those two women managed to escape their captors, but they had nowhere to go Two other women suffered injuries that they couldn’t treat in China because they couldn’t go to the hospital given their undocumented status: one woman had badly hurt her head, hip, and back in a recent traffic accident and the other is Kwon’s mother, who had been sick for several years with an unknown disease. Her health situation has worsened in the past few months.
Activists and family members have reported to Human Rights Watch at least 41 detentions of North Koreans in China over the past nine months, including a teenager, a 10-year-old child, and a woman who is seven-months pregnant. Based on information received from family members, Human Rights Watch believes at least nine of these people were forcibly returned to North Korea. However, Human Rights Watch does not have reliable estimates of the total overall number of North Koreans returned to North Korea by the Chinese government. Forcing North Koreans back to North Korea amounts to refoulement, or the sending of persons back to territory where they face serious human rights violations (persecution) or torture, a practice forbidden by international treaties to which China is a party.
According to testimonies received by Human Rights Watch from North Koreans who have been apprehended in China and returned to North Korea, the North Korean government treats those who leave the country without permission harshly upon repatriation.
In 2010, North Korea’s Ministry of People’s Security adopted a decree making defection a crime of “treachery against the nation,” punishable by death. North Koreans who have fled the country since 2013, or with contacts inside the country, have told Human Rights Watch that people repatriated by China, who were caught trying to go to South Korea, can face seven to fifteen years of forced labor in ordinary prison camps (kyohwaso – re-education correctional facilities), incarceration in political prison camps (kwanliso), or even execution. Those who had been illegally living in China may be sentenced to more than two years of forced labor in ordinary prison camps. A former senior official in the North Korean state security service (bowibu), who worked on the border and received North Koreans sent back from China, told Human Rights Watch that they torture every single returnee to find out where they had been in China, who they had contacted, and what activities they had done.
Political prison camps in North Korea are characterized by systematic abuses and often deadly conditions, including meager rations that lead to near starvation, virtually no medical care, lack of proper housing and clothes, regular mistreatment – including sexual assault and torture by guards, and executions. Death rates in these camps are reportedly extremely high. Detainees in ordinary prison camps face forced labor, food and medicine shortages, and regular mistreatment by guards.
The 2014 Commission of Inquiry on Human Rights in North Korea found that those fleeing the country are targeted as part of a “systematic and widespread attack against populations considered to pose a threat to the political system and leadership of the DPRK…to isolate the population from contact with the outside world.” It also found that “almost all of the repatriated people are subjected to inhumane acts. The torture, sexual violence and inhumane conditions of detention that victims endure during the search and initial interrogation phase appear to be based on standard procedures.”
China regularly labels North Koreans as illegal “economic migrants” and repatriates them based on a 1986 border protocol. However, regardless of the reasons they initially leave the country, North Koreans are virtually guaranteed extremely abusive treatment if forced back, qualifying them as refugees sur place or refugees because of circumstances post-dating their departure.
China, as a state party to the 1951 UN Convention on Refugees and its 1967 Protocol, as well as the 1984 Convention against Torture, is specifically obliged not to return refugees when that may put them at risk of persecution or torture. The same obligations bind China as a matter of customary international law.
Human Rights Watch calls on China to immediately stop forced repatriation of North Koreans, and to allow the UN Refugee Agency (UNHCR) to exercise its mandate. China should provide asylum to North Korean refugees, give them the option to seek resettlement in a third country, or allow them to pass through Chinese territory without fear of arrest or forcible repatriation.
In December 2016, the Security Council discussed for a third year in a row the human rights situation in North Korea as a threat to international peace and security. Last month, the UN Human Rights Council passed without a vote a resolution that strengthens the UN’s work to assess and develop strategies to prosecute the continued pervasive abuse of human rights by the North Korean government.
“There is no way to sugar coat this: if this group is forced back to North Korea, their lives and safety will be at risk,” said Robertson. “The world is watching to see whether Beijing observes its duty to protect these eight refugees or becomes complicit with North Korea’s abuses.”
(Washington, DC) – Venezuela’s humanitarian crisis is spilling across its borders, Human Rights Watch said today. Latin American governments need to apply strong pressure on the Maduro administration to address severe shortages of medicine and food in Venezuela that are causing Venezuelans to leave the country.
Tens of thousands of Venezuelans have fled a humanitarian crisis that their government denies exists and is not addressing adequately. Thousands have gone to Brazil, many entering via the border that Venezuela shares with the Brazilian state of Roraima. Some seek protection there as refugees, others seek temporary work, while others make visits seeking desperately needed medical care. The unprecedented influx of Venezuelans is straining Roraima’s already overburdened public health care system and clogging Brazil’s system for processing asylum applications.
More than 12,000 Venezuelans have entered and stayed in Brazil since 2014, according to official sources. The number of Venezuelans moving to Brazil has increased more than five-fold from 2014, reaching 7,150 during the first 11 months of 2016. Many Venezuelans are living in precarious conditions on the streets and in a shelter in Boa Vista, Roraima’s capital. Despite the difficult conditions, all of the more than 60 Venezuelans Human Rights Watch interviewed in February said they were better off in Brazil than in Venezuela.
Even in the hospitals where Venezuelans make up a small proportion of total patients, several health care professionals and officials said the increase in the patient load is aggravating existing strains on the state’s public health care system.
Brazilian health care providers said that Venezuelans tend to arrive at the hospital sicker than Brazilians, having failed to receive adequate treatment at home. Many are treated for complications because conditions such as HIV/AIDS, pneumonia, tuberculosis, and malaria have been left untreated due to shortages of medicines in Venezuela. As a result, doctors said, Venezuelan patients more frequently require hospitalization than local patients. Health care professionals said that even before the influx of Venezuelan patients, hospital capacity was insufficient to meet demand.
In one example Human Rights Watch found, Barbara Rosales, 21, went to the hospital in the Venezuelan city of Santa Elena de Uairén with complications in her six-month pregnancy in January. The hospital lacked the medicine she needed and ended up sending her to Brazil in a car accompanied by a nurse but without any medicines. Rosales was immediately hospitalized in Brazil. Five days later, her baby was born, weighing one kilogram. When Human Rights Watch visited the hospital a month later, the baby remained in intensive care.
Roraima authorities have provided additional funding to state hospitals to respond to the increased demand for services. In December, the governor declared a health emergency to obtain federal aid. But aid had not arrived, state authorities said in February.
Other Venezuelans said they had moved to Brazil because they could not buy the medications they needed at home. Geraldine Dhil, 32, said that she crossed the border trying to find a job to buy medicines in Brazil to treat her 13-year-old daughter, who has cancer. Human Rights Watch interviewed her while she was walking the 200 kilometers (125 miles) from the border to Boa Vista in stifling heat.
According to information gathered by the office of the UN High Commissioner for Refugees (UNHCR) in Brazil over the past five months in Roraima, the influx from Venezuela is mixed – some would qualify for international protection as refugees while others would not. Former officials of the Brazilian refugee agency told Human Rights Watch that they shared the same view.
Nearly all the Venezuelans interviewed said they primarily left Venezuela either because they could not buy adequate food or medicines for their families, or because of crime. Most had requested asylum. The Brazilian government reported that the number of Venezuelans seeking asylum has skyrocketed, from 54 in 2013 to 2,595 in the first 11 months of 2016. As of December 31, the Justice Ministry had only decided 89 of the 4,670 cases of Venezuelans who had requested asylum since 2012, granting asylum in 34 of those cases. The backlog of unresolved claims from Venezuelans is slowing the processing of all asylum claims throughout Brazil.
More than 4,000 Venezuelans in Roraima have been stuck for months on a waiting list for appointments to file asylum requests. Brazilian law allows people who have requested asylum to stay in Brazil, obtain work permits, and enroll their children in school. But it is unclear whether the appointment slips that the Federal Police have been handing out, some for as late as 2018, are valid to certify that the person has an official temporary permission to stay. Even if Venezuelans are not deported while they wait for their appointment, they have no legal authorization to work, which makes them vulnerable to exploitation.
In 2016, authorities deported 514 Venezuelans from Roraima – compared with just 20 in 2015. The Federal Police tried to deport 450 members of the Venezuelan Warao indigenous people in December, but the federal Public Defender’s Office filed a habeas corpus petition with a local judge on the grounds that the attempt was arbitrary, and the judge stopped the deportation at the last minute.
In March, the Brazilian National Council of Migration, which is part of the Ministry of Labor, approved a resolution to grant Venezuelans two-year residence permits, a move that could ease pressure on the overwhelmed Brazilian asylum process if adequately implemented.
In May 2016, after the Organization of American States (OAS) Secretary General Luis Almagro presented a report on the human rights and humanitarian crisis in Venezuela, the OAS Permanent Council agreed to move forward with an evaluation of Venezuela’s compliance with the Inter-American Democratic Charter, despite the Venezuelan government’s claim that it violated its sovereignty. In mid-March 2017, Almagro reopened the debate, stating Venezuela was violating the charter’s provisions.
On March 28, 20 OAS member states voted to debate the Venezuela crisis at a Permanent Council meeting, despite Venezuela’s insistence that it would constitute intervening in the country’s internal affairs. During the discussion, some OAS members delivered a strong message that Venezuela’s crisis is undermining human rights and democracy. Several regional governments issued similarly strong messages days later, after the Venezuelan Supreme Court effectively shut down the National Assembly on March 29. Although the court partly backtracked three days later, after Maduro asked it to revise the ruling, it has not reversed previous decisions that had already severely undermined the National Assembly’s powers.
On April 18, 2017, Human Rights Watch presented its findings on the impact of Venezuelan immigration to Brazil to Almagro.
“Putting Venezuela at the top of the region’s foreign policy priorities is key to addressing a problem that is already having an impact outside of Venezuela’s borders,” Vivanco said.
For the detailed findings, accounts by people interviewed, and steps taken by the Brazilian government to address the situation, please see below.
Human Rights Watch Findings
In February, Human Rights Watch interviewed close to 100 people in Roraima, including Venezuelans who had recently arrived in Brazil, Brazilian government officials, health care professionals, academics, and activists. The Venezuelans came from Caracas, Venezuela’s capital, and nine states – Aragua, Anzoátegui, Bolivar, Carabobo, Mérida, Miranda, Monagas, Sucre, and Zulia – some of which are more than 1,000 kilometers from the border. Human Rights Watch also reviewed state government health care statistics, information provided by the two main hospitals in Boa Vista, and judicial files and resolutions issued by Brazilian state and federal authorities.
The Humanitarian Crisis in Venezuela
Venezuela is experiencing a profound humanitarian crisis, as Human Rights Watch and others have documented. Medicine, basic medical supplies, and even food are in such short supply that many Venezuelans cannot feed their families or get adequate medical care. Low and middle-income families who rely on items subject to government-set maximum prices are particularly affected.
The Venezuelan government’s response has been woefully inadequate. Denying that a crisis exists, authorities have neither implemented effective policies to alleviate it nor made serious efforts to obtain international humanitarian aid that could significantly bolster its own limited efforts. In late March, President Nicolás Maduro said on television that he had asked the United Nations for help to obtain medicines, without providing any additional information, but he still has not acknowledged the extent of the crisis. Meanwhile, Venezuelans’ rights to health and food are being seriously undermined, with no end in sight.
Venezuelan Migration to Brazil
In desperation, Venezuelans are fleeing, and for the many who cannot afford plane tickets, their destination is just across the border to Brazil’s northern state of Roraima.
Tens of thousands have entered Brazil since 2013. Most have been temporary migrants who returned home after making some money.
However, more than 12,000 have stayed in Brazil since 2014, according to an official report. The number of Venezuelans who enter Brazil and stay each year has increased more than five-fold, from 1,341 in 2014 to 7,150 in the first 11 months of 2016, according to official data. Most recorded entries were registered at the crossing between Santa Elena de Uairén, Venezuela, and Pacaraima, Brazil. Others have crossed the border without informing Brazilian authorities, Brazilian Federal Police officials told Human Rights Watch. (Venezuela and Brazil share a 2,200-kilometer-long land border.)
Human Rights Watch interviewed 65 Venezuelans in Roraima who had recently arrived. All said they had fled Venezuela because they could not afford to buy enough food for their families, they did not have access to adequate health care, or they had been – or feared that they would be – victims of violent crime – or a combination of those reasons. Almost everyone was sending food and money back to family members, mostly children or parents. Some said they had suffered or witnessed political persecution in Venezuela, although none said it was their primary reason for fleeing.
Some Venezuelan immigrants are starting to move out of Roraima, many to the city of Manaus, Amazonas state, which is at the end of the only paved road that connects Roraima to the rest of Brazil, said Venezuelans and Brazilian government officials interviewed. Although there are no official statistics, at least 200 have already arrived in Manaus, according to local press accounts.
Impact on Roraima’s Healthcare System
Roraima’s public healthcare system has for years struggled to meet local needs, according to César Farias, the state health secretary, and health professionals interviewed. Some patients were assigned to reclining chairs in corridors due to a shortage of beds, healthcare professionals said.
The influx of Venezuelans in 2016 – both of patients now living in Brazil and temporary visitors seeking health care – has made a difficult situation worse, a review of official data and key informant interviews with health care professionals at the main hospitals in Boa Vista and Pacaraima indicate. While in the past Brazilians living in Roraima were sometimes treated in Venezuelan facilities under a bilateral agreement, the current movement of patients is almost entirely from Venezuela to Brazil.
Between January and the beginning of December 2016, more than 7,600 Venezuelans were treated at the Roraima General Hospital, the main health care facility in the state, which treats over 80 percent of the adult population; the maternity hospital Nossa Senhora de Nazareth, the only state facility dedicated to maternal health care; and the Pacaraima hospital, which serves the border area.
At the Pacaraima hospital, about 80 percent of patients are Venezuelans, a head nurse said. The increased demand in Pacaraima – a border city of about 12,000 – is extending aspects of Venezuela’s crisis into Brazil. Some essential medical supplies, such as gauze, IV fluids, and syringes, and basic medicines to provide basic health care, such as paracetamol for children, are in critically short supply, the nurse said. A state government emergency decree states that, between January and August 2016, more than half of the prenatal care visits in Pacaraima were by Venezuelan women.
At the two main healthcare facilities in Boa Vista, the vast majority of patients are Brazilian. Nonetheless, health officials and workers said the sharp increase in Venezuelan patients has put an unprecedented strain on the ability to adequately treat patients. Healthcare professionals said that because of complications due to a lack of adequate treatment at home, Venezuelan patients frequently require complex medical treatment or hospitalization and extended hospital stays.
This puts a further strain on a system that at the beginning of 2016 already had a statewide deficit of 170 beds to serve the local population, according to the state health secretary and hospital staff. The director of the Roraima General Hospital said that while 7 percent of Brazilian patients need to be hospitalized, for Venezuelans, it is about 20 percent.
Doctors said that many Venezuelans need treatment for conditions left untreated, such as HIV or tuberculosis. In cases of acute conditions, such as pneumonia or malaria, many Venezuelan patients rush to Brazilian hospitals because of the lack of medicines at home. Based on official statistics, as of August 2016, 77 percent of the 2,517 malaria patients in Roraima were Venezuelans.
At the General Hospital of Roraima, 1,815 Venezuelans were treated in 2016 – up from 537 in 2015. In February, several healthcare professionals in the emergency room estimated that at least 30 percent of patients were Venezuelans. Doctors and nurses said that the increase of Venezuelan patients was significant and continued in 2017. An average of 300 Venezuelan patients were being treated monthly, the hospital director said.
The Roraima General Hospital director said that her hospital had faced shortages of medicines and supplies due to the influx of Venezuelan patients. She said that each hospital requests medicines and supplies to treat patients based on the number of treatments provided during the previous year, and that the hospital had not anticipated the influx of Venezuelans in 2016. As a result, the hospital used up the medicines and supplies for the year by August. The director had to request emergency supplies to provide adequate medical care for the rest of the year.
The number of Venezuelan women who sought help at the maternity hospital increased from 368 in 2014 to 453 in 2015 to 807 in 2016. In 2016, more than 100 had Caesarian sections, based on hospital data. Other women experienced pregnancy-related complications, some of which had not been adequately addressed due to a lack of prenatal care, and often had to remain hospitalized, the hospital’s clinical director said.
Accounts by Venezuelans
In January, María Coromoto Peñuela took her son from her hometown of Santa Elena de Uairén, on the Venezuelan side of the border, to Boa Vista for an appendectomy. The surgery could not be performed at home due to scarcity of medical supplies. Two weeks later, a family friend drove her 68-year-old husband, Olimpo Lozada Marcano, to Brazil as well because of what she said were complications from a gallstone that could not be treated in Venezuela. The hospital director said that had Lozada obtained adequate treatment when he first developed symptoms, he would not have required hospitalization for emergency surgery.
Barbara Rosales, 21, went to the hospital in the Venezuelan city of Santa Elena de Uairén with complications in her six-month pregnancy in January 2017. A doctor gave her a medical order for treatment in Brazil, saying that the hospital could not treat her due to a lack of medicines and would not be able to care for her baby if it was born prematurely, she said.
As the hospital’s ambulance was out of service, the hospital arranged for a car to drive her to Boa Vista – although she had to pay for the gas – and assigned a nurse to travel with her. Rosales said she fainted three times during the trip and the nurse did not have any medicine to give her. When she arrived at the maternity hospital, Rosales was immediately hospitalized. Five days later, her baby, who weighed one kilogram, was born. When Human Rights Watch visited the hospital a month later, the baby was doing well but remained in intensive care. Rosales said she would return to Santa Elena de Uairén once the baby was released from the hospital and given the first vaccines, which were unavailable in Venezuela.
Some Venezuelans said they had moved to Brazil because they could not buy the medications they needed at home. Geraldine Dhil, 32, said that she crossed the border trying to find a job to buy medicines in Brazil to treat her 13-year-old daughter, who has cancer. Human Rights Watch interviewed her while she was walking the 200 kilometers from the border to Boa Vista. At the side of the road, it was 32 degrees Celsius (90 degrees Fahrenheit) at 10 a.m., and the grasslands of northern Roraima provided virtually no shade. Marlene Fuentemayor, 37, told Human Rights Watch that she moved to Boa Vista to be able to feed her family and buy medicines for her 12-year-old son, who was diagnosed with Asperger syndrome, an autism spectrum disorder.
Others said they came to buy medicines to take back home, due to the shortages in Venezuela. Enriqueta Rivero, 70, interviewed at the Brazilian Federal Police border post in Pacaraima, said she had not been able to find medications for high blood pressure for months and her grandchildren were taking her to Boa Vista to find the medicines the doctor at home had prescribed.
The Impact on Brazil’s Refugee System
The 1951 Refugee Convention defines a “refugee” as someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” The non-binding 1984 Cartagena Declaration has a broader refugee definition, which includes people fleeing from “generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.” Brazilian law incorporates the Refugee Convention and also considers someone a refugee if they are leaving their country due to “grave and generalized human rights violations.”
In March, the Justice Ministry told Human Rights Watch that 34 Venezuelans had obtained asylum in Brazil since 2012, 29 of them due to religious persecution or their membership in a targeted social group, three due to grave and generalized human rights violations, and two due to political persecution. Between 2012 and 2016, 55 asylum requests by Venezuelans were dismissed, the ministry said.
Although most Venezuelans arriving in Brazil say that the primary reasons for leaving Venezuela are economic – the great difficulty they face to buy food and medicines for their families – and the fear of being victims of crime, thousands have requested asylum.
Members of the federal Prosecutor’s Office and the federal Public Defender’s Office told Human Rights Watch in February that seeking asylum was virtually the only alternative that Venezuelans had. Brazil’s immigration law – passed during its dictatorship – offers very few possibilities for legal migration.
To request asylum, Venezuelans simply need to state before a federal police officer that they are seeking asylum, and are not required at the outset to provide evidence to corroborate their claims. Under Brazilian law, while their asylum requests are being processed, they cannot be deported, are entitled to a work permit, and are allowed to enroll children in school.
CONARE, the federal refugee agency, makes the final refugee status decision in a process that used to take an average of two years before the increase in the number of Venezuelan applicants, according to Rosilene Duarte Santiago, the Federal Police general director in Roraima.
As of December 31, 2016, 4,670 Venezuelans had requested asylum in Brazil since 2012, the Justice Ministry told Human Rights Watch. According to other official sources, the number of Venezuelans seeking asylum in Brazil increased from 54 in 2013 to 208 in 2014, 825 in 2015, and 2,595 between January and December 1, 2016. In Roraima, nine Venezuelans sought asylum in 2014, 234 in 2015, and 2,230 in 2016. The increased Venezuelan immigration in Brazil coincides with the deterioration of the humanitarian situation in Venezuela.
Human Rights Watch asked the Justice Ministry to provide updated information on asylum applications and asylum approval rates. The government response, dated March 3, does not include information for 2017. However, local authorities confirmed that the number of requests remained high in 2017, and most Venezuelans arriving in Roraima interviewed in February planned to seek asylum, or already had.
Federal Police in Roraima have had insufficient personnel to process the increased asylum requests since the beginning of 2016. To address this problem, the Federal Police in Roraima created a system – not provided for in any law – of giving Venezuelans appointments to lodge their asylum requests months later. In February, the Federal Police received an average of 50 to 70 asylum requests a day and were scheduling approximately 200 people per day to file an application later. The waiting list was 4,000 names long in February, said the Federal Police general director in Boa Vista. Human Rights Watch reviewed several slips of paper with appointment dates, and interviewed dozens of Venezuelans who were waiting for an appointment that they had been told would be later in 2017 or in 2018.
In the meantime, the Federal Police said, Venezuelans with the receipt showing they had an appointment would not be deported. However, other authorities, including Edinéia Chagas, the Civil Police chief in the state of Roraima, and Roberta Alvim, a federal public defender, told Human Rights Watch that there was no clarity regarding the legal validity of these appointments.
Even if not deported, Venezuelans who are on this waiting list are vulnerable to exploitation since they are not allowed to obtain a work permit at that stage. A few Venezuelans also said that their employers failed to pay them for their work, but they did not file a complaint because they lacked work permits.
Several Venezuelan women who had received appointment slips but no work authorization said they were engaging in sex work for the first time in their lives and that they did not report crimes they suffered or witnessed – such as robbery, beatings, kidnapping, and rape – because they feared being deported.
In one case, a 27-year-old sex worker was kidnapped by a client, who raped her several times in his car and nearly choked her to death, said two other sex workers who lived with her and saw the marks on her throat. The victim told them she had escaped after the man stopped his car at a store. The two witnesses said that they saw the man again in the area where they work days later, which prompted the victim to return to Venezuela. “She did not tell the police because she was afraid. She had no papers,” one of the sex workers said.
The increased number of asylum applications from Venezuelans that CONARE needs to evaluate delays the processing of every asylum request in the country, the director of the immigration of the Federal Police in Roraima said.
Threat of Deportation
In 2016, Brazilian authorities deported 514 Venezuelans from Roraima – up from approximately 20 in 2015, according to the Federal Police in Roraima. There were cases of individual deportations as well as the mass deportation by the Federal Police of approximately 200 Venezuelans, including dozens of children, in September, Alvim, the federal public defender, said.
At about 4 a.m. on December 9, members of the municipal guard and state military police rounded up approximately 450 indigenous Venezuelans, including about 200 children, who were sleeping on the street at a local market in Boa Vista. Local vendors complained of reduced sales because the Venezuelans were sleeping there. Members of the group interviewed said they had left Venezuela because of a lack of food.
The Venezuelans were taken to the Federal Police headquarters and by 4 p.m. were told to board a series of buses to be deported back to Venezuela.
The Federal Police said its officers interviewed each Venezuelan individually and followed the legal process established by a law that allows the authorities to “summarily” deport foreigners “in cases of infractions against national security, political or social order, popular economy, … or violation of a prohibition provided by in the immigration law.” In these cases, authorities may deport people in a summary process that can take no more than 15 days and is not subject to appeal.
Brazil’s Congress is debating a proposed revision of the law. While the current law – adopted during Brazil’s dictatorship – prioritizes protecting “national security,” the bill states that human rights will be guiding principles of Brazil’s immigration policies. The legislative proposal opens new paths for legal migration into Brazil, allowing the government, for example, to grant humanitarian visas to nationals of countries under “grave or imminent institutional instability, armed conflict, large-scale calamity, grave violation of human rights or international humanitarian law, or other circumstances.”
Human Rights Watch interviewed people who were subject to the summary deportation attempt on December 9 and reviewed police documents. Eight people said they had been sleeping when military police officers and municipal guards rounded them up and forced them onto buses. The agents took away the IDs of those who had them, without asking if any of them had requested asylum – although some had – they said.
Federal prosecutors, who in Brazil are also charged with protecting basic rights, told Human Rights Watch and said in written judicial documents that the Federal Police officers did not provide an interpreter, though the people involved were members of the Warao indigenous community and many did not speak Portuguese or Spanish.
More than 240 deportation documents that Human Rights Watch had access to had the exact same text, except for the name of the deportee and the person’s Venezuelan ID number, if she or he had one. None were signed by the deportee – they had a stamp saying that the person being deported was “illiterate,” which would have made it impossible for people to read the terms of their deportations. All the documents were signed by the same federal police officer and by the same two witnesses.
Alvim filed an habeas corpus request that day and asked a local judge to suspend the mass deportation, contending that it violated the deportees’ due process rights and Brazil’s obligation not to deport groups of people provided for in Article 22(9) of the American Convention on Human Rights. The judge ordered the Federal Police to stop the deportations when the buses were arriving at the border. Some Venezuelans decided to disembark there, and the rest were driven back to Boa Vista.
There have not been any mass deportation attempts since then.
Precarious Living Conditions in Brazil
Many Venezuelan immigrants are living in precarious conditions in Roraima. People who had been construction workers, teachers, or middle-class professionals in Venezuela are now selling food or crafts, or washing windshields at stoplights. The Warao work unloading trucks at the border town of Pacaraima, make handicrafts, or beg on the streets. Human Rights Watch spoke to dozens of Venezuelans in this situation. Despite recognizing that they were living in very difficult conditions, they all said they were better off in Brazil than in Venezuela.
On December 17, a judge from the state juvenile justice system ruled that the state and municipal governments had to provide shelter, food, and security to Venezuelan immigrant children living on the streets in Boa Vista.
Ten days later, state and municipal authorities opened an improvised shelter at a local warehouse that had functioned as a public gym. The shelter – which has housed up to 500 immigrants at a time, according to official sources – was administered for months by Fraternidade, a Brazil-based international aid organization. For its work at the shelter, the group relied on the state and municipal governments’ contributions and private donations. In February, the group was planning to end its activities at the shelter, but it was unclear who would take over.
When Human Rights Watch visited the shelter in February, 180 Venezuelans were living there. They slept on hammocks or on the floor and faced very poor hygienic conditions.
The vast majority were Warao. Malnutrition in Venezuelans arriving at the shelter was “apparent,” said the director of the Center of Migration and Human Rights of the Roraima Dioceses. In mid-February, Human Rights Watch interviewed the mother of a 2-year-old girl who had arrived at the shelter weeks earlier weighing only seven kilos.
In January, the Fraternidade staff member in charge of the shelter took a 16-year-old girl who appeared to have chicken pox to the doctor and informed health authorities of the case. Although a representative from the state health secretary visited the shelter soon after, no one provided vaccinations. When Human Rights Watch visited in February, chicken pox had spread to five other people, including the girl’s 4-month-old baby.
Brazil’s Evolving Response
While the primary responsibility for the suffering of the thousands of people who are fleeing Venezuela lies with the Maduro administration, Brazil is obligated to ensure that once Venezuelans arrive in its territory, their basic rights are respected. That includes their right to health and their right not to be deported arbitrarily, as well as the principle of non-refoulement – not returning refugees to a situation where their lives or personal freedom would be at risk.
There was a consensus among authorities, prosecutors, academics, and healthcare professionals interviewed in Roraima that the influx of Venezuelans in 2016 created an unforeseen situation that Brazilian authorities at the state and federal levels are figuring out how to resolve. While the Roraima state government and federal officials recognized the problems, and have adopted some positive measures to try to address them, they have yet to ensure a sustainable solution to a problem that will not go away unless the Venezuelan government effectively addresses its humanitarian crisis.
Measures to Provide Basic Services to Venezuelans, Including Health Care
In October, Roraima Governor Suely Campos created a Cabinet for Migration Management consisting of various state authorities, to elaborate public policies to address the impact of Venezuelan immigration into the state. The group established a Center of Reference for Immigrants, which has attempted to provide basic support to Venezuelan immigrants and complied with the judicial ruling that ordered authorities to provide shelter and basic services to Venezuelan immigrant children living in the streets with their families. In mid-February, Doriedson Ribeiro, the then executive secretary of Roraima’s Civil Defense, a civilian crisis-response body charged with implementing state government policies to address the influx of Venezuelans into Roraima, told Human Rights Watch that while the state government would not challenge the judicial ruling, it cannot provide support to Venezuelans at the shelter “forever.” He also said that the current situation was unsustainable, and he did not know what would happen.
In the area of health, the state government is building two new hospitals that, when finished, would increase the number of beds by 240. The estimated completion date is June, the state health secretary said. The projects were planned years ago, and are unrelated to the influx of Venezuelans, although their completion would alleviate the increased burden on the healthcare system.
In December, Governor Campos declared a health emergency in the – municipalities of Boa Vista and Pacaraima due to an “intense migration influx.” The decree is valid for 180 days and requests federal government support to “provide quality care to Brazilians and Venezuelans.” As of February, though, the federal government had not contributed any funds, the state health secretary said.
Measures to Address the Impact on Brazil’s Refugee System
On February 3, the Federal Attorney General’s Office, the Federal Public Defenders’ Office, and the Labor Prosecutors’ Office—the unit within the Federal Attorney General’s Office that monitors labor rights—, with the support of Brazilian nongovernmental groups, presented a proposal to the National Immigration Council – a federal body that deals with immigration policies – to grant Venezuelan immigrants two-year residency and work permits, as are currently granted to nationals of other Mercosur countries.
On March 2, the National Council of Migration adopted a resolution based on the proposal, which entered into effect upon publication in the official gazette the next day. Under the new provisions, to obtain a two-year residency permit, Venezuelans must go to a Federal Police office and present a form with personal information, two pictures, a valid ID or passport, a birth certificate or consular document certifying where they were born, and a certificate stating they do not have a criminal record in Brazil, and state that they do not have a criminal record in Venezuela. Those who had previously requested asylum may decide to withdraw that application when they file for the two-year residency permit.
The new rules will be in place for a year, and may be extended. CONARE is drafting implementing regulations, and the Justice Ministry is considering measures to diminish the cost for Venezuelans to apply for these residency permits. To ensure that Venezuelan immigrants in Brazil, particularly those who arrive in Roraima with limited resources, are able to take advantage of this process, Brazilian authorities should consider minimizing the cost for applying, as well as the requirements to obtain Venezuelan documents that may be difficult to get from Venezuelan consulates, Human Rights Watch said.
In his speech announcing new “get tough on immigrants” policies, Attorney General Jeff Sessions said it was necessary to take a “stand” against “transnational gangs like MS-13 and international cartels.”
MS-13. The Mara Salvatrucha. I remember when MS-13 was a local gang, centered just outside downtown Los Angeles in the Pico-Union neighborhood. It was made up primarily of Salvadoran teens whose families had left that country to escape poverty, an oppressive right wing regime, and a brutal civil war. In the 1990s, MS-13 grew large and often violent. As a public defender in Los Angeles at that time, I represented many MS-13 members, and many of their rivals, on charges ranging from petty theft and vandalism to murder.
The gang members I represented while working juvenile court were mostly lost kids struggling with poverty, poor schools, broken families, and little hope, who found a home and structure in the gang. Some committed inexcusable acts of violence, but many were convicted for minor crimes, and then, under US policy, deported to the country of their birth. They often didn’t know the language, and had nothing there – no family or cultural ties. Nothing, except the gang.
Traveling in El Salvador in 1998, everywhere I went I saw MS-13 graffiti and hard-looking, shaven-headed boys standing on the corners, who appeared straight out of Pico-Union. I saw in them the faces of my former clients. The US deportation strategy exported Los Angeles’ gangs – MS-13 to El Salvador, 18th Street to Guatemala, other LA gangs all over Mexico and Central America. Now they have become international criminal organizations, funded by smuggling drugs and people and committing violence here and throughout much of Mexico and Central America.
The US should take intelligent steps to stop gang violence. But most of the people Sessions’ policies would crack down on – recent border crossers, including asylum seekers charged with “illegal entry” or “reentry,” parents of US citizens who may have committed some minor offense – are not transnational criminals. Often, they are the gangs’ victims.
Before breaking up families, locking people in detention centers, and causing people to fear the government, Sessions would do well to take a hard look at the unintended consequences of the United States’ own past hardline policies.
On March 16, 2017, a helicopter attacked a boat carrying 145 Somali migrants and refugees near the port of Hodeida, killing at least 33 people and wounding another 29. Ten remain missing. The coalition is the only known force operating military aircraft in the area. A member of the UAE Armed Forces said that the UAE was operating in the area but denied that the UAE carried out the attack, according to the UAE state news agency. A deliberate or reckless attack on civilians is a war crime. Under the laws of war, the UAE is obligated to investigate alleged serious laws-of-war violations and take appropriate action.
“Desperate Somalis fleeing Yemen’s conflict became the targets of the very violence they were trying to escape,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “The UAE has been a major player in the Saudi-led coalition yet appears to have done nothing to address the role its forces played in scores of unlawful airstrikes carried out over the past two years.”
The UAE state news agency reported that a member of the UAE armed forces called the attack “unprovoked” and “a painful humanitarian disaster.” He “stressed that the UAE Armed Forces welcomed any independent, international investigation into the incident.”
Since March 2015, 4,773 civilians have been killed and another 8,272 wounded in the conflict in Yemen, the majority by Saudi-led coalition airstrikes, according to the United Nations Office of the High Commissioner for Human Rights. Human Rights Watch has documented 81 apparently unlawful coalition attacks since the start of the conflict. Opposing Houthi-Saleh forces have also been implicated in numerous serious violations of the laws of war.
“The concerns expressed by the UAE armed forces for the attack on the refugee boat should be promptly translated into action,” Whitson said. “The UAE should be pressing other coalition members to accept an impartial, international investigation into this and other allegedly unlawful attacks by all sides in the Yemeni conflict.”
If you were one of the world's 21.3 million refugees and woke up one day to find the country that had sheltered your family for many years now considered you to be traitors and terrorists, what would you do? What if the government had given its police a green light to make your life miserable and were threatening to deport you in the middle of winter back to nothing — no home, no job, no school? Would you wait and see whether things calmed down or pack your bags and leave?
That's the terrible choice Pakistan gave its 2.5 million-strong Afghan community -- refugees and undocumented individuals -- last year, and it worked. A brutal police crackdown and deportation threats coerced over 600,000 Afghans in the last six months of 2016, including 365,000 registered refugees, to face danger and destitution back in Afghanistan.
Having hosted millions of Afghan refugees over several decades, Pakistan was well aware that it would have faced international condemnation had it forced the refugees into trucks and dumped them across the border.
In response to deteriorating political relations between Pakistan and Afghanistan, the authorities instead carried out a concerted campaign to make Afghans lives' so miserable they would leave. This included making their legal status insecure, threatening to deport them in the middle of winter and giving the police free reign to commit a range of abuses.
But coercing registered refugees into returning home against their will violates the international legal prohibition against refoulement -- not to forcibly return or pressure anyone into returning to a place where they would face a real risk of persecution, torture or other ill-treatment, or a threat to life.
Even worse, the United Nations High Commissioner for Refugees let itself be bullied into helping it all happen. By increasing cash payments to returning refugees and failing to publicly call for an end to coercive practices, the UN agency became complicit in Pakistan's mass refugee abuse.
The Afghan exodus from Pakistan in the second half of 2016 amounts to the world's largest unlawful forced return in recent years, making the UN's complicity all the more shocking. All eyes are now on Pakistan and the UN to see whether those wielding power over the remaining Afghans will reverse course.
As a 25-year-old Afghan told me after his overnight return journey from Pakistan's border areas, "No matter who you are, your heart will turn black with so much abuse."
After an initial round of police abuses against the Afghan community in 2015, which triggered a first wave of Afghan refugee departures, the Pakistani authorities ditched their previous policy of renewing Afghan refugees' permits every few years. Instead, last year they gave the refugees six months to leave, at the very last minute gave them another six, and then said they had three more months to pack their bags.
Afghan refugees returning to Kabul told me the ever-present threat of imminent deportation, particularly in the middle of Afghanistan's bitterly cold winter, left them lying awake at night fearing for their families' lives.
Yet stripping Afghan refugees of a secure legal status wasn't the only ploy to coerce them out. The authorities also mounted an aggressive media campaign in newspapers and on television and radio, telling Afghans it was time to leave and that they risked summary deportation if they stayed.
This gave the Pakistani police a green light for a second round of anti-Afghan abuses in early July 2016. Returning refugees told Human Rights Watch that police raided their homes at night, accused them of being or harboring terrorists, threatened to split up families and deport them, arbitrarily detained them for hours or days at a time and regularly subjected them to crippling levels of extortion.
A day after the Human Rights Watch report was released, Pakistan issued a statement, saying that "notwithstanding any isolated or individual incidents, there is no policy of coercion" against Afghans. However, the government did not address any direct claims of police raids or forcible deportations.
And what did the UN refugee agency do to stop this mass exodus? It remained publicly silent about coerced returns and doubled its cash grant to $400 for every returning Afghan refugee.
For an average poor Afghan family of seven, $2,800 was an astronomical amount of money, about the same as a senior teacher's annual income in Afghanistan. For many who were on the fence about whether to wait, it proved to be the tipping point. Refugees told me they were afraid that if they didn't take the money, they would end up being deported penniless anyway.
UNHCR has told Human Rights Watch that, in its opinion, some Afghans returned from Pakistan "under difficult conditions" and that UNHCR's policies did not encourage anyone to leave against their will.
According to the United Nations, the vast majority of those returning are now homeless and without jobs. Many will join the estimated 1.5 million Afghans already displaced from their own homes by the country's spiraling conflict, which killed and maimed more Afghans in 2016 than any other year since records began in 2009. The Afghan government and aid agencies are overwhelmed and have been pleading with donors to fund emergency winter assistance.
But there may well be worse to come. Pakistan has made clear it wants to see the exodus continue this year, and in February, the authorities extended Afghan refugees' permits from March 31, 2017, only until the end of December. This means that the estimated 1.9 million Afghans remaining in Pakistan again face the prospect of deportation in sub-zero temperatures.
To add insult to injury, the UN refugee agency resumed its cash support, at a reduced rate of $200, on April 3. But absent a commitment by the Pakistani authorities to end all police abuses and stop its deportation threats, Afghan refugees will continue to leave Pakistan under pressure and involuntarily.
There is a real risk, then, of repeated mass unlawful forced refugee returns and a repeat of last year's failure by the UN refugee agency to do its fundamental duty to defend refugees against it.
To avoid triggering a humanitarian catastrophe in Afghanistan by forcing back hundreds of thousands more refugees, Pakistan should reverse course and protect Afghans until it is safe for them to go home. Afghanistan's donors should generously support Pakistan and aid agencies assisting Afghans in Pakistan and should press the government to end its abuses and threats. The government should extend refugees' registration cards until at least March 2019. And the UN refugee agency should stop supporting involuntary refugee return and unequivocally publicly challenge any further efforts by Pakistan to force out Afghan refugees.
595. A nice round number, right? It refers to the dead and missing in the central Mediterranean, mostly between Libya and Italy, in the first three months of 2017. The known dead died from drowning, exposure, hypothermia, and suffocation. Horrible, agonising deaths.
24,474. This is a nicer number. It refers to the women, men, and children who made it safely to Italy this year, all of them plucked from flimsy, overcrowded boats by European vessels. Many were rescued by teams from nongovernmental organisations patrolling international waters just off Libya, where most migrant boats depart.
Those groups - including Doctors Without Borders (MSF, for the French acronym), Migrant Offshore Aid Station (MOAS), SOS Mediterranee, Proactiva Open Arms, Sea-Watch and others - are now being accused of encouraging boat migration. Or worse, of collusion with people smugglers.
The EU border agency, Frontex, has suggested that the presence of rescue operations by nongovernmental groups is a pull factor, encouraging people to take the dangerous journey in hopes of rescue.
A prosecutor in Catania, Sicily, has opened an inquiry into the funding streams for these groups, indicating a suspicion that they may be profiting illicitly from the movement of people in search of safety and better lives.
This is the latest cruel twist in the EU’s response to boat migration from Libya. It reflects concern over increasing numbers of people embarking from Libya, the strain on the reception system in Italy and beyond, and the rise of xenophobic populism in many EU countries.
But blaming the lifesavers ignores history, reality, and basic morality.
As MSF’s Aurelie Ponthieu explained, the NGO group rescuers are not “the cause but a response” to an ongoing human tragedy.
Even before the significant increase in numbers in 2015, tens of thousands of people have been risking their lives in unseaworthy boats in the Mediterranean for decades; almost 14,000 have died or been reported missing since 2011.
After the October 2013 Lampedusa tragedy, in which 368 people lost their lives, there was increased talk among organisations about mounting rescue missions in the central Mediterranean.
In 2015, that became a reality, in large part because the end of the Italian navy’s humanitarian rescue mission Mare Nostrum and the gaps in its poor replacement by the EU border agency Frontex.
People embark on these dangerous journeys for myriad reasons; they are fleeing persecution, violence, and poverty, and moving toward freedom, safety, and opportunity.
Both pull and push factors are always in play when people are on the move. Insofar as more freedoms, liberties, and policies grounded in respect for human rights - including vital rescue-at-sea operations - serve as pull factors, these should not be sacrificed in the name of limiting migration.
The presence of EU vessels just off Libyan waters has changed the dynamic of boat migration.
There is more hope of rescue, and smugglers have adopted even more unscrupulous tactics like using inflatable (throw-away) Zodiacs instead of wooden boats and providing only enough fuel to reach international waters.
But to question the humanitarian imperative of rescue at sea is to discard our most basic respect for life. And the logic of those who criticise the rescue operations as a pull factor is that the groups should stop rescuing people and let them drown to discourage others from coming.
That is no more moral than planting landmines on a border to discourage people from crossing it.
It is telling, and encouraging, that the EU’s naval Operation Sophia, an anti-smuggling operation named after a baby girl rescued by one its vessels in 2015, boasts of saving thousands of lives.
The officers from numerous European navies deployed in the operation have participated in numerous rescue missions, and shepherded many exhausted, grateful people to safe harbours.
Neither Operation Sophia nor Frontex have search-and-rescue at the core of their missions, but they are bound by the laws of the sea and the humanity of their crews to rescue those whose lives are in peril.
There are steps beyond rescue that can mitigate the situation. Trapping people in unsafe countries like Libya is not the answer.
But increasing safe and legal routes for refugees to seek protection in Europe and tackling the human rights abuse and poverty that drives migration can help.
And in the meantime, there should be an end to recriminations and accusations and treating like criminals the rescuers working for charities, who are helping plug the gap left by EU member states.
What is needed is more mutual trust, better coordination, and active EU patrols in locations where most boats enter into distress to ensure timely rescues.
This submission focuses on the protection of education and the situation of asylum seekers and refugees in Pakistan. It is an update to our earlier submission, based on recent events. It relates to Articles 2, 6, 7, 11, 13, and 14 of the International Covenant on Economic, Social and Cultural Rights (the “Covenant”), and proposes issues and questions that Committee members may wish to raise with the government.
Evidence included in this submission is based in part on Human Rights Watch’s research on attacks on students, teachers, schools, and universities, and the military use of schools, between 2007 and October 2016. Human Rights Watch conducted interviews with 48 people including teachers, students, parents, and school administrators in the provinces of the Punjab, Sindh, and Khyber Pakhtunkhwa (KP); monitored and analyzed media reports; and reviewed academic publications and government documents. Further information can be found in the Human Rights Watch report, “Dreams turned into Nightmares”: Attacks on Students, Teachers, and Schools in Pakistan.
This submission is also based on information contained in a February 2017 report documenting violations of the rights of refugees in Pakistan. Human Rights Watch interviewed 92 Afghan refugees who had returned to Kabul between October 26 and November 1, 2016, and 23 Afghan refugees and undocumented Afghans in Peshawar, Pakistan between November 8 and 11, 2016. Further information can be found in the Human Rights Watch report, Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees.
Education (Articles 13, 14)
Pakistan has a fragile education system because of poor access to education, low enrollment rates, gender bias, lack of trained teachers, and poor physical infrastructure. In 2015, 5,599,070 children aged 6-11, of whom 3,309,514 were girls, and 5,445,332 adolescents ages 12-17, of whom 2,902,032 were girls, were out of school in Pakistan.
Attacks on students, teachers, schools, and universities continue to occur in Pakistan, with a devastating impact on the right to education. The Pakistan government does not collect consistent or transparent national data on the number of attacks on schools and universities, or the number of deaths and injuries from such attacks. However, according to the Global Terrorism Database, there were 867 attacks on educational institutions in Pakistan from 2007 to 2015 resulting in 392 fatalities and 724 injuries.
Human Rights Watch documented attacks by militant groups, including Tehreek-i-Taliban Pakistan (TTP), also known as the Pakistani Taliban, the Lashkar-e-Jhangvi (LeJ), and several other Islamist militant groups, that have destroyed school buildings, targeted teachers and students, and caused parents to keep their children out of school. They have also targeted higher-education colleges.
Pakistan’s militant Islamist groups use attacks on schools and universities to foster intolerance and exclusion and to target symbols of the government; some groups attack schools because they are used as bases by the security forces or because the curriculum is too “secular” or Western.
Attacks on education disproportionately affect girls, who are more likely to be kept out of school due to security concerns. The attacks documented by Human Rights Watch have been particularly directed to end girls’ access to education. This contributes to Pakistan’s significantly worse educational outcomes for girls. When the TTP gained complete control over the Swat Valley in KP in 2009, they began a violent campaign against education for girls. Over 900 girls’ schools were forced to close and over 120,000 girls and 8,000 women teachers stopped attending school. Several students did not return to school even after the Pakistan army had displaced the Taliban control from the area.
In June 2012, the Government Girls Primary School, Ghulam Banda, Kohat, KP, was targeted in a bomb attack. The watchman of the school confessed to blowing up the school on the orders of the Taliban. Teacher Ahmad Ali said that they had feared such an attack because girls attended the school:
I was asleep at home, which is close to the school. I woke up on hearing an explosion at around midnight, but was too frightened to come out. In the morning, I came to the school and saw that some unknown terrorists had bombed the school and completely destroyed two rooms. Another room in the middle was also badly damaged. The Taliban have attacked schools for girls all over KP and the police had, in the past, warned that our school might be a target. However, no police security was provided to the school.
The school has been rebuilt and was functional when Human Rights Watch visited.
In February 2016, militants targeted a newly constructed girls’ school in South Waziristan, the Federally Administered Tribal Areas (FATA) in a bomb attack. Sajna group, a faction of the TTP, claimed responsibility in a statement saying, “We have blown up the school because it was a government installation.”
Aitzaz Hasan, a 15-year-old boy, died on January 7, 2014 while preventing a suicide bomber from entering Government High School Ibrhamizai School in KP’s Hangu district. The school is the only one in Ibrahimzai, a Shia-dominated area in Hangu. Nearly 2,000 students were in the school at the time the attack occurred. The attack was claimed by LeJ. Ali Hussain, a resident and an elder of the village, told Human Rights Watch:
We already feel threatened because we are Shia. However, nobody thought that the LeJ would attack a school. School is supposed to be a place of safety of our children. For many days after the attack, my son couldn’t go to school. I also didn’t want him to. There is police security at the school now, but on most days that is just one police constable. We have tried to put together a team of local volunteers to guard the school. But what can we do when faced with a suicide attacker? There is only one school in the village and all our children go to this school. An attack on this school is devastating for us. Many people in the village have made their children discontinue school after the martyrdom of Aitzaz Hasan.
On January 20, 2016, four gunmen opened fire at Bacha Khan University in Charsadda district of KP. According to the Pakistan army, all four assailants scaled the university walls and opened indiscriminate fire. They were wearing suicide vests, but were killed by the soldiers before they could detonate. Asim (pseudonym), a 23-year-old student studying geology, described the attack and its impact:
I was in my room in the hostel with some other students when I heard the sound of heavy firing. We locked ourselves in the room. We could hear firing and footsteps. The militants knocked at our door, asking us to open. I hid under the bed in my room. They eventually broke the door and came in. They killed five of my friends in front of me. Then they left the room. After a few minutes the militants came in again to check if anyone was alive. They did not look under the bed. But they lobbed a grenade in the room and left. I was very seriously injured by the grenade splinters. I was in the hospital for 20 days. I suffer from nightmares and panic attacks. I have not been able to focus on studying for the past many months. In our university, there are five students in each hostel dorm room-- all four of my roommates are dead, and they were killed in front of my eyes. How can I ever forget that? I cannot live in a hostel or dorm room again.
Military use of schools and universities
Government forces—both in Pakistan and while deployed to the United Nations peacekeeping mission in the Central African Republic—have used schools for military purposes.
In conflict areas in Pakistan, particularly in KP and FATA, the army has partially or completely occupied educational institutions. Many of the schools taken over by the army were previously under the occupation of the Taliban when the army went in to Swat and FATA.
In Swat, after its military offensive, the Pakistan army forced the Taliban to vacate the schools, but ended up occupying them instead. Although most schools have now been vacated, around 20 schools were still under military use in Swat as of December 2016.
A school official in Swat told Human Rights Watch in July 2016 that his school has been occupied for military purposes since 2009.
When the army came to Swat they claimed to have no place to live and hence they stationed themselves in government schools and colleges. They also occupied a few private schools. The private school that I ran was also taken over. I left Swat as an internally displaced person when the military offensive started in May 2009, and when I returned in July, I found that a unit of Baloch regiment of the Pakistan army had taken over my school. They paid no compensation. When I went to the school and asked when my school will be vacated, I was told to wait. I protested and finally wrote to the general headquarter [GHQ] of the Pakistan army, registering my protest. After I complained to the GHQ, the colonel in charge of our area asked me to stop complaining. The district administration has also expressed its inability to help me. I was left with no choice but to accept the army’s decision. Now they pay us a rent for the school building, however the rent is not based on any market value assessment, they [army] pay whatever they feel like. I have now set up another private school.
Pakistani troops who participate in UN peacekeeping operations are obliged under UN regulations not to use schools in their operations. Yet, Pakistani peacekeeping troops serving as part of the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) used school grounds in Mourouba, a small town in the Ouaka province of the Central African Republic. This is also contrary to a MINUSCA directive from December 2015 stating that troops and police shall not use schools for military purposes. Human Rights Watch researchers saw peacekeepers from Pakistan using the school grounds as their base during a visit to Mourouba on January 22, 2017. Human Rights Watch informed MINUSCA authorities of the occupied school in Mourouba and it was subsequently vacated.
Human Rights Watch also documented the occupation of schools and universities by the Muttahida Qaumi Movement (MQM), a political party, and criminal groups. Since 2004, Lyari, a low-income residential settlement in Karachi, Sindh, has witnessed incessant, violent fighting between criminal gangs; many of them enjoy the protection and patronage of various political parties. The violence has significantly damaged the municipal infrastructure, schools, and hospitals.
Schools have also been used as offices of political parties and gang hideouts. There are bullet marks on the walls of many schools in Lyari such as Ghairiabad Girls Secondary School and M. Alvi Government Girls Primary School as a result of crossfire between law enforcement officials and the gang members in 2010. The worst affected were schools in the areas that were at the boundaries of different gang territories. Almost 80 percent of schools were either damaged or directly occupied by the gangsters.
Pakistan’s 1938 Manoeuvres, Field Firing and Artillery Practice Act prohibits the entry or interference of any educational institution during military maneuvers.
Government response to attacks on education:
The Pakistani government paid little attention to the protection of students, teachers, and educational facilities until the attack by the TTP on the Army Public School in Peshawar on December 16, 2015, which killed 145 people, almost all children. Shortly after, Prime Minister Nawaz Sharif announced a 20-point National Action Plan to comprehensively deal with terrorism, but none of the 20 points pertain to students or education. Despite hundreds of attacks on teachers, students, schools, and universities, the Pakistan government has not successfully prosecuted the perpetrators in most instances.
The responsibility for enhancing and maintaining security in schools has been largely left to the provincial governments. This has been sporadic and varies across provinces, with little attention to the specific need to protect girls’ education. In most cases, responsibility for enhancing and maintaining security has been passed on to school authorities. This has led to increased hardship and chaos. Some schools are organizing traumatic security drills, others arming teachers and students. Criminal cases have also been filed against teachers and principals for not taking security measures.
In many of the schools that Human Rights Watch visited classes are conducted in the grounds while the school or parts of it are rebuilt. Many of the interviewees expressed concern about the quality of the reconstruction and felt the authorities are in a rush to rebuild and compromise on the quality of construction.
Human Rights Watch recommends the Committee ask the government of Pakistan:
- How many schools, universities, or education facilities have been damaged or destroyed as a result of attacks by a) state security forces and b) non-state armed groups in each year of the reporting period, and since?
- What action has the government taken to prevent attacks by non-state armed groups on schools and universities and to mitigate their impact when they do occur?
- How many schools, universities, or education facilities have been fully or partially occupied or used by a) government security forces and b) non-state armed groups in each year of the reporting period, and since?
- What action has the government taken to ensure that attacks on schools in contravention of international humanitarian law are investigated and those responsible appropriately prosecuted?
- What measures is the government putting in place to ensure children displaced by conflict are able to safely access a quality education?
Human Rights Watch recommends to the Committee that it call upon the government of Pakistan to:
- Endorse the Safe Schools Declaration, thereby endorsing and committing to use the Guidelines for Protecting Schools and Universities from Military Use in Armed Conflict.
- Cooperate with provincial authorities to create an advance rapid response system whenever there are attacks on schools, so that these facilities are quickly repaired or rebuilt and destroyed educational material is replaced so that children can return to school as soon as possible. During reconstruction, students should be provided education through alternative means and, where appropriate, given psychosocial support.
- Collect reliable, transparent national data on attacks students, teachers, schools and universities, and the military use of schools and universities, in order to track repairs of damaged schools, identify trends that could inform protective measures, and assist with the investigation and prosecution of the responsible individuals.
- Investigate and appropriately prosecute individuals responsible for involvement in the range of violations of international law that constitute attacks on education, including as a matter of command responsibility.
- Take concrete measures to protect education from attack and deter the military use of schools, following UN Security Council Resolutions 2143 (2014) and 2225 (2015).
- Take measures to promote the physical and psychological recovery and social reintegration of children who are victims of armed conflict or were recruited into armed forces or non-state armed groups.
- Ensure all troops deployed on UN peacekeeping missions receive pre-deployment trainings that include the prohibition on the use of schools during such operations.
The situation of Afghan refugees and asylum seekers in Pakistan (Articles 2, 6, 7, 11, 13)
The situation of Afghan refugees and asylum seekers in Pakistan continues to be of concern. In the second half of 2016, Pakistani police carried out a wave of abuses against Afghan refugees, accompanied by a government information campaign telling Afghans it was time to leave Pakistan. This increasingly insecure legal status drove just under 365,00 registered Afghan refugees and just over 200,000 undocumented Afghans out of Pakistan, including unknown numbers among the unregistered who had sought but been unable to obtain protection after refugee registration ended in early 2007. These people now face armed conflict, violence, destitution, and displacement in Afghanistan.
Pakistan’s coercion of hundreds of thousands of registered Afghan refugees into returning to Afghanistan has violated the international legal prohibition against refoulement. The exodus in the second half of 2016 also constituted the world’s largest mass forced return of refugees in recent years.
Almost every Afghan interviewed by Human Rights Watch spoke of crippling police extortion that made it pointless to go to work and impossible for them to make ends meet. They described how, from July 2016, Pakistani police repeatedly stopped and extorted from them between 100 and 3,000 rupees [US$1 - $30] each time. In many cases the police used the fact that refugees’ Proof of Registration (PoR) cards had expired at the end of December 2015—despite government announcements extending their validity—as an excuse to demand money and threatened to confiscate their cards or deport them if they didn’t pay. A 28-year-old man living in Board Tajabad town near Peshawar said:
The situation with the police got so bad about three weeks ago [early October 2016] that we could not leave the house. The police were stopping us all the time, asking for money. They took everything we had so we stopped working and just stayed at home. We realized we had to leave [Pakistan].
Several returning refugees in Kabul and Afghans in Peshawar told Human Rights Watch that Pakistani police had slapped or beaten them when extorting money or stealing their possessions. Five others said that for the first time ever, police had stolen goods and trading tools worth thousands of rupees, effectively leaving them destitute, ending their ability to work, and convincing them it was time to leave Pakistan.
Arbitrary detention was also a key factor causing Afghans to leave. Dozens of Afghans told Human Rights Watch that police arbitrarily detained them or relatives, including sick, elderly people, in police stations for between a few days and two months, and extorted up to 50,000 rupees ($500) per person in exchange for their release. Several interviewees said that the police first gave them a choice to pay in the street and said if they didn’t, they would take them to police stations where they would demand far greater sums of money.
According to dozens of interviewees, various security forces raided the settlements or neighborhoods where they lived and entered Afghans’ homes by day or night, mostly in July and August, including when all the men were at local mosques and women were alone at home. Women and girls felt particularly threatened by these raids. Soldiers or police officers conducting the raids told them that all Afghans were on the brink of being deported, and took some relatives to police stations to extort money. Some said officers in their homes accused them of being terrorists.
Afghans told Human Rights Watch that the steady reduction in the security of their legal status—resulting from the shorter refugee card extension periods since late 2015—and police frequently saying their expired 2015 cards were invalid, despite government announcements extending their validity, had left them feeling exposed to the risk of deportation.  On September 9, 2016, Pakistan extended the cards’ validity by a further three months until the end of March 2017, but again did not issue new cards. On February 7, the cards were extended until December 31, 2017.
The fear of summary deportation during winter, and being split from families as well as not having the time to sell their possessions before being deported were key factors causing refugees to leave.
Many Afghans cited the closure of Afghan refugee schools and exclusion of Afghan refugee children from Pakistani schools as one of the key reasons they left Pakistan. Approximately half of the Afghans interviewed by Human Rights Watch said that from May 2016, their children had been excluded from Pakistani state schools or the authorities had shut down Afghan refugee schools.
Other factors causing refugees to leave included anti-Afghan hostility by local Pakistani communities; Pakistani landlords suddenly charging significantly increased rent for apartments and business premises; the Afghan authorities’ promises to give returnees land; new border crossing restrictions preventing them from returning home for funerals or working in Afghan border areas; and the wish to follow relatives or even entire communities who had already returned and without whom they did not want to stay in Pakistan.
Finally, many refugees said that UNHCR’s decision in late June to double its cash support, to US$400, for each returning refugee was critical in persuading them to escape Pakistan’s abuses, even though they couldn’t return to their conflict-ridden home areas, or had no house or land to go back to.
Human Rights Watch recommends the Committee ask the government of Pakistan:
- What measures are being taken to ensure that the police abuses against Afghans in 2016 do not recur?
- When do the authorities plan to announce whether they will extend the December 31, 2017 deadline for registered and undocumented Afghans to leave Pakistan?
- What measures is the government taking to ensure that all foreign national children, including Afghans, regardless of their immigration status, have access to free primary education and access to secondary education on the same basis as Pakistani children?
Human Rights Watch recommends to the Committee that it call upon the government of Pakistan to:
- Publicly assure all registered Afghan refugees that they will be allowed to stay in dignity in Pakistan until it is genuinely safe for them to return to Afghanistan.
- To end mass refoulement of Afghan refugees, stop setting short-term deadlines for the expiration of refugees’ Proof of Registration cards and stop making related deportation threats; instead revert to the previous two-year extension policy and extend cards until at least March 31, 2019, while committing to extend them at the latest by the end of October 2018; continue to extend cards’ validity until Afghanistan has reached a point of stability to enable safe and dignified return in line with international standards.
- To avoid refoulement of refugees among undocumented Afghans in Pakistan, re-open registration for Proof of Registration cards so that Afghans who arrived after mid-February 2007 can obtain such status, or provide a comparable blanket protection against forced return.
- Issue a written directive instructing all relevant government officials and state security forces not to resume their abuses against registered and undocumented Afghans, including extortion, arbitrary detention, house raids without warrants, unlawful use of force, and theft; investigate and appropriately prosecute police and other officials responsible for serious abuses against Afghans.
 Global Terrorism Database, Search results for attacks on educational institutions in Pakistan between 2007 and 2015, https://www.start.umd.edu/gtd/search/Results.aspx?start_yearonly=2007&end_yearonly=2015&start_year=&start_month=&start_day=&end_year=&end_month=&end_day=&asmSelect0=&country=153&asmSelect1=&target=8&dtp2=all&success=yes&casualties_type=b&casualties_max=, (accessed October 28, 2016).
 Abdul Sami Paracha, “Watchman confesses to blowing up school in Kohat,” Dawn, June 25, 2012,
http://www.dawn.com/news/729501/watchman-confesses-to-blowing-up-school-in-kohat, (accessed November 26, 2016).
 Human Rights Watch interview with Ahmad Ali (pseudonym), Kohat, February 7, 2016.
 Human Rights Watch, “Dreams turned into Nightmares.”
 “New government school blown up in South Waziristan,” The Express Tribune, February 20, 2016, http://tribune.com.pk/story/1050956/new-government-school-blown-up-in-waziristan/ (accessed November 7, 2016).
 “Saving lives: a teenager’s sacrifice for hundreds of mothers,” The Express Tribune, January 9, 2014, http://tribune.com.pk/story/656766/saving-lives-a-teenagers-sacrifice-for-hundreds-of-mothers/ (accessed November 4, 2016).
 Human Rights Watch interview with Ali Hussain (pseudonym), Hangu, February 9, 2016.
 Human Rights Watch, “Dreams turned into Nightmares.”
 Asim (pseudonym), student of Bacha Khan University, Charsadda, KP, describing the Taliban attack on January 20, 2017.
 Human Rights Watch, “Dreams turned into Nightmares.”
 Human Rights Watch interview with Raza Khan (pseudonym), Swat, July 19, 2016.
 United Nations Infantry Battalion Manual, 2012, section 2.13, “Schools shall not be used by the military in their operations.”
 “MINUSCA directive on the protection of schools and universities against military use,” December 24, 2015, MINUSCA/OSRSG/045/2015, https://minusca.unmissions.org/sites/default/files/151224-046_minusca_directive_on_the_protection_of_schools_and_universities_against_military_use.pdf (accessed April 3, 2017).
 Human Rights Watch, No Class, When Armed Groups Use Schools in the Central African Republic, March 2017, https://www.hrw.org/report/2017/03/23/no-class/when-armed-groups-use-sch....
 Matthieu Akins, “Gangs of Karachi,” Harpers’ Magazine, September 2015, http://harpers.org/archive/2015/09/gangs-of-karachi/, (accessed on November 5, 2016).
 Human Rights Watch, “Dreams turned into Nightmares.”
 Manoeuvres, Field Firing and Artillery Practice Act, Act No. V of 1938, March 12, 1938, art. 3.
 “Days of terrorists are numbered, says PM,” Dawn, December 25, 2014, http://www.dawn.com/news/1152966, (accessed October 28, 2016); National Counter Terrorism Authority Pakistan, “20 Points of National Actions Plan”, n.d., http://nacta.gov.pk/NAPPoints20.htm, (accessed October 28, 2016).
 Human Rights Watch, “Dreams turned into Nightmares.”
 Human Rights Watch, Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees, February 2017, https://www.hrw.org/report/2017/02/13/pakistan-coercion-un-complicity/ma....
 In January and again in June 2016, the Pakistani authorities extended the validity of Afghans “Proof of Registration” cards without issuing new cards.
 Human Rights Watch interview, Kabul, October 27, 2016.
 Human Rights Watch interviews in Kabul, October 28 and 30, 2016 and Peshawar, November 8 and 11, 2016.
 Human Rights Watch, Pakistan Coercion, UN Complicity.
 Human Rights Watch interviews, Kabul, October 27 – 31, and November 1, 2016.
 Human Rights Watch, Pakistan Coercion, UN Complicity.
 Asad Hashim, “Afghan refugees' status extended until end of year
Pakistani cabinet decides to push back Afghan refugees' legal right to stay in the country from March 31 to end of 2017,” Al Jazeera, February 7, 2017, http://www.aljazeera.com/news/2017/02/afghan-refugees-status-extended-ye... (accessed April 3, 2017).
 Human Rights Watch interviews, Kabul, October 27 – 31, 2016.
 Human Rights Watch, Pakistan Coercion, UN Complicity.
 Pakistan Coercion, UN Complicity, pp. 25-26.
For the last 25 years, Israel has imposed increasingly strict restrictions on travel to and from the Gaza Strip. Those restrictions affect nearly every aspect of life in Gaza, including the ability of human rights workers to document violations of human rights and international humanitarian law (IHL) and to advocate for their remediation. While Israel makes exceptions to its travel ban for what it calls humanitarian reasons, as a rule, it does not permit Palestinian, Israeli and foreign staff of human rights organizations to enter or leave Gaza. Israel controls Gaza’s airspace and territorial waters and has prevented the operation of an airport or seaport for the past two decades, rendering Palestinians in Gaza dependent on foreign ports to travel abroad. It also severely restricts all travel between Gaza and the West Bank, recognized as a single territorial unit, even when the transit does not take place via Israeli territory.
Egypt has kept its border crossing with Gaza, Rafah crossing, mostly closed since 2013, opening it every several weeks to allow passage for a few thousand people. It has refused permission for foreign human rights workers to enter Gaza via the Rafah crossing in recent years and has restricted the ability of Palestinian human rights workers to cross. In justifying its restrictions on access via Rafah, Egypt says that Israel, as the occupying power, is responsible for Gaza, and it also cites the security situation in the area of Egypt's Sinai Peninsula bordering Gaza, where an affiliate of the Islamic State has engaged in violent confrontations with the Egyptian military since 2013, killing hundreds. But Egypt began greatly restricting transit through Rafah before the security situation in the Sinai deteriorated and shortly after the military's July 2013 removal of former President Mohamed Morsy, whom the military accused of receiving support from Hamas. While Egypt does not owe obligations to Palestinians under the law of occupation and can, with some important limitations, decide whom to allow to enter its territory, its actions are exacerbating the impact of Israel’s travel restrictions on residents of Gaza.
The Israeli government justifies the restrictions on travel, including travel for human rights workers, on two grounds. First, it says, travel between Gaza and Israel inherently endangers Israeli security, whether the travelers are Palestinians or not, and irrespective of any individualized risk assessment for a particular person. Second, it says, its obligations toward Gaza are limited to allowing passage for exceptional humanitarian circumstances only, and job-related travel for human rights workers does not qualify as exceptionally humanitarian.
Without the ability to get staff, consultants and volunteers into and out of Gaza, Palestinian human rights groups find it difficult to maintain programs across Gaza and the West Bank, which Israel recognized as a single territorial unit, and about which there is international consensus that is it occupied territory. Palestinian human rights workers from Gaza are all but barred from accessing training and professional development opportunities outside Gaza and from meeting with their West Bank-based colleagues. Foreign and Israeli staff of human rights organizations are ordinarily not permitted into Gaza, limiting their ability to identify, research and advocate against human rights and IHL abuses and keeping experts from applying specialized knowledge to the research and documentation of IHL violations, including possible war crimes.
The Hamas authorities in Gaza, for their part, have not taken adequate steps to protect human rights defenders against retaliation for criticizing armed groups in Gaza, and in some cases they have arrested and harassed Palestinians who express criticism of the Hamas regime.
The prosecutor of the International Criminal Court (ICC) has opened a preliminary examination into possible serious crimes committed in Palestine, including Gaza, as of June 13, 2014. A key factor the prosecutor will consider in determining whether to open a formal investigation is whether any credible national proceedings exist that would preclude the ICC’s involvement. Under what is known as the principle of complementarity, the ICC is a court of last resort, stepping in only where national authorities are unable or unwilling to conduct genuine domestic proceedings.
In public statements and documents, the Israeli government and military have argued vigorously that the Israeli mechanism for investigating potential war crimes meets international standards and that Israeli officials are actively and genuinely investigating all relevant claims and information regarding potential violations of IHL. The Israeli authorities acknowledge the difficulty of collecting evidence from inside Gaza, where Israel no longer has a permanent ground troop presence, and of receiving complaints and information from witnesses and victims inside Gaza, who fear and distrust the Israeli military. However, they cite, among other means, cooperation with and reliance on human rights and other nongovernmental organizations as an important means of receiving information about potential violations of IHL and obtaining the cooperation of Palestinian witnesses. Yet the restrictions that the Israeli military imposes on access for human rights workers make it more difficult for human rights workers to document potential violations. These restrictions hamper what is, by the Israeli government’s own acknowledgement, a significant source of information and evidence about potential IHL violations, raising questions not just about the capability of the Israeli authorities to investigate potential violations of the laws of war but also their willingness to do so.
Israel’s restrictions on access to and from Gaza go far beyond what is permitted by international humanitarian law and human rights law. Because Israel continues to exercise control over significant aspects of life in Gaza, it continues to have obligations under the law of occupation in the areas in which it continues to exercise control – primarily to allow the movement of people and goods. While the law of occupation allows Israel to restrict travel for imperative reasons of security, the generalized travel ban it imposes is vastly disproportionate to any concrete security threat. Israel is also required, under the law of occupation as codified in Article 43 of the Hague Regulations, to permit the proper functioning of civil society, including human rights organizations and activity. The ban also runs afoul of Israel’s obligations to respect the human rights of Palestinians in Gaza and the West Bank, including their right to freedom of movement, which includes, with some limitations, a right to enter and leave one’s country and to choose one’s place of residence within it.
Israel should bring its policy on access to Gaza into conformity with its obligations under IHL and human rights law. It should do so by facilitating access to and from Gaza for all Palestinians, subject to individualized security screenings and inspections. In particular, it should facilitate access for Palestinian human rights workers, whose activities are an essential part of a properly functioning society and who are part of a civil society that, by the Israeli government’s own admission, plays an important role in documenting and advocating against potential war crimes and violations of IHL. Israel should also strongly consider permitting access to Gaza for foreign human rights workers, who contribute to the proper functioning of normal civilian life by providing assistance to local human rights groups, strengthening civil society, and helping to protect victims. The work of such organizations defending human rights has been recognized as worthy of protection by the United Nations General Assembly.
Human Rights Watch also recommends that the International Criminal Court open a formal investigation into the situation in Palestine in order to ensure accountability for any potential serious crimes committed in Palestine since June 2014. It recommends that the Hamas authorities in Gaza take steps to protect human rights activists and allow them to document violations by all sides, including by Hamas and armed Palestinian groups inside Gaza.
Egypt also should consider the impact of its closure of the border with Gaza on the rights of Palestinians living there, as well as its obligations to uphold the Fourth Geneva Convention, which provides protections for people living under occupation.
To the Israeli Defense Ministry and Interior Ministry
- End the generalized ban on travel to and from Gaza, and permit the free movement of people to and from Gaza, subject to individual security screenings and physical inspection. Such screenings should take place in a transparent, non-arbitrary manner, should give individuals an opportunity to challenge refusals directly before the Israeli authorities, and should balance measures to protect against specific, concrete security threats with Israel’s obligations toward Palestinians living in Gaza.
- Until the travel ban is lifted, add human rights workers to the categories of Palestinians permitted to travel between Gaza, Israel and the West Bank and to travel abroad from Gaza in order to access work meetings, trainings, conferences, and other professional development opportunities, including rest and relaxation breaks.
- Allow foreign and Israeli human rights organizations to send personnel, consultants, volunteers and experts into Gaza in order to engage in work-related documentation, training, research, and advocacy.
- Facilitate access to ports for travel abroad. Until Palestinians are permitted to reopen and reestablish their airport and open a seaport, allow Palestinians to use Israeli ports for travel.
To the International Criminal Court’s Office of the Prosecutor
- In evaluating the credibility of Israel’s domestic investigations, take into consideration Israel's policy on travel for human rights workers, including the effect of the travel restrictions on the quality and extent of the information that reaches Israeli military authorities and how this may reflect on the ability and willingness of the authorities to conduct genuine proceedings.
- Raise concerns with Israeli authorities about their policy toward the movement into and out of Gaza for human rights workers.
To the Hamas Authorities in Gaza
- Protect human rights workers in Gaza from all threats of retaliation or harm, physical or otherwise, stemming from their research and advocacy regarding human rights and IHL violations, including abuses by armed groups in Gaza.
- Refrain from arresting, censoring or otherwise taking action against people in Gaza who peacefully document human rights and IHL violations and express criticism of the government, including human rights activists, journalists, and others.
- Conduct genuine investigations into alleged serious crimes committed by armed Palestinian groups in Gaza during the 2014 war.
- Like all parties to the Fourth Geneva Convention, Egypt should do everything within its power to ensure the universal application of the Convention’s humanitarian provisions, including protections for civilians living under occupation.. Egypt should also allow access for United Nations Human Rights investigators and consider the impact of its border closure on the rights of Palestinians to travel to and from Gaza.
This report examines Israel’s policy on allowing access into and out of Gaza for staff members, consultants, volunteers and other personnel working with Palestinian, Israeli, and foreign human rights organizations. It also examines the impact of that policy on the ability of the Israeli authorities to investigate adequately violations of IHL that allegedly occurred in Gaza or are otherwise related to the conduct of hostilities between the Israeli military and armed Palestinian groups in Gaza.
A Human Rights Watch researcher and two Human Rights Watch research assistants conducted 12 interviews with representatives of four Palestinian human rights organizations based in Gaza, two foreign human rights organizations, and one Israeli human rights organization. Four of these organizations play a prominent role in documenting abuses stemming from the conduct of hostilities between Israel and Palestinian armed groups in Gaza.
We also reviewed documents published by the Israeli Defense Ministry outlining the criteria for entering and leaving Gaza, court documents in which the Israeli authorities explained their policy regarding access for Gaza and its rationale, written responses to individual requests to travel to and from Gaza, and public statements, written and oral, made by the Israeli authorities regarding their mechanisms for investigating violations of IHL by Israeli armed forces and the nature of their relationship with human rights organizations.
We reviewed publications by these human rights organizations, including a 2016 report on the effect of the travel restrictions on civil society organizations and reports issued by human rights groups on the conduct of hostilities during the summer of 2014. Human Rights Watch wrote to the Israeli military attorney general (MAG) seeking comment and received a letter in response, the full text of which is included in the annex to this report.
In the course of researching this report, Human Rights Watch repeatedly requested permission for its foreign staff members to enter Gaza. The Israeli authorities refused most of those requests, but they approved the last request on an exceptional basis, as will be described in the report, and two representatives of Human Rights Watch visited Gaza in September 2016.
All interviewees freely consented to be interviewed. Human Rights Watch explained to them the purpose of the interview and how the information gathered would be used, and did not offer any remuneration.
I. Closure of Gaza
The Gaza Strip, the West Bank and Israel, together make up the land that was mandatory Palestine, governed by the UK, in the post-World War I era. The cultural, political, economic, social and familial ties between these areas run deep, and for most of the modern era there was freedom of movement across the region. The 1948 Arab-Israeli War divided these areas, leaving Gaza under Egyptian military occupation, the West Bank under Jordanian rule, and Israel as a sovereign state. Palestinian refugees from what became Israel fled or were expelled to Gaza, and today 72 percent of Gaza’s 1.8 million residents are refugees or their descendants. The Israeli capture of Gaza and the West Bank in 1967 led to all the areas coming under the control of Israel, with Israel establishing two military governments to rule Gaza and the West Bank.
For the first two decades of the Israeli occupation, Palestinians were mostly permitted to travel between Israel, Gaza and the West Bank, effectively rejuvenating the historical ties that had been interrupted in 1948. While the Israeli military declared Gaza and the West Bank to be closed military zones, it issued a series of “general exit permits” mostly allowing Palestinians to travel without need of an individualized permit, unless individually prohibited.
In 1991, during the first Intifada or Palestinian uprising and against the backdrop of the first Gulf War in which Iraq bombed Israel, the Israeli military canceled the general exit permit that had been in place and gradually began to require Palestinians to obtain individual permits to travel. Although the 1995 Oslo Peace Accords recognized Gaza and the West Bank as a “single territorial unit,” during the 1990s it became increasingly difficult to travel between the two areas, and in 1995 Israel built a fence along its border with Gaza. With some ebbs and flows, between 1991 and 2005, travel into and out of Gaza became increasingly restricted. The restrictions coincided with escalations of violence, including armed clashes between armed groups in Gaza and the Israeli military, attacks on the crossings between Gaza and Israel, and bombings targeting Israeli civilians inside Israel and the Gaza Strip.
For most of that time period, the Israeli military, which controlled access between Gaza and the outside world, justified the travel restrictions by citing security concerns or military necessity. The restrictions included both individual travel bans, based on assessments by the Israel Security Agency (ISA or Shin Bet), and generalized restrictions, such as closing crossings, blocking entire categories of people from traveling, or limiting travel to humanitarian cases.
In 2005, Israel removed the civilian settlements it had established in the Gaza Strip, ended its permanent ground troop presence there, and withdrew from the Gaza-Egypt border. At that time, the rationale for imposing travel restrictions began to shift. Israel claimed that it no longer occupied the Gaza Strip and that it therefore no longer owed obligations to Palestinian residents of Gaza under the law of occupation, including a duty to permit travel. In September 2007, following the collapse of a Palestinian national unity government and the takeover of internal control of Gaza by the Hamas movement, the Israeli government issued a cabinet decision announcing restrictions on the movement of people and goods into and out of Gaza, including in order to weaken the economy in Gaza, which the government declared to be a “hostile territory.”
The Israeli government calls its policy restricting access into and out of Gaza “the separation policy,” which it says serves both security and political goals. It says it wants to restrict travel between Gaza and the West Bank to a minimum in order to avoid transferring “a human terrorist network” from Gaza to the West Bank, the latter of which has a porous border with Israel and is home to a half million Israeli settlers. Today, access into and out of Gaza for Palestinians is limited to “exceptional humanitarian circumstances, with an emphasis on urgent medical cases,” although Israel also considers hundreds of senior merchants and others eligible to travel.
In 2016, there were on average 12,150 crossings per month of Palestinians from Gaza entering Israel and the West Bank, compared with more than half a million crossings in September 2000, on the eve of the outbreak of the second Intifada or Palestinian uprising. The number of crossings is much higher than the number of people who travel because some travelers, especially merchants, travel multiple times per month. Access for Palestinians between Gaza, Israel and the West Bank is barely more than 2 percent of what it was in September 2000, and most of Gaza’s nearly 2 million residents are not permitted to travel.
Also in 2016, an average of 700 representatives of international organizations, primarily humanitarian aid workers, traveled between Gaza and Israel and the West Bank each month. There is additional travel by foreigners (people listed on neither the Palestinian nor the Israeli population registry) between Gaza and Israel and the West Bank each month via the Erez passenger crossing, including journalists, diplomats and those traveling to visit immediate family members in cases of death, grave illness, or weddings. Still, access via the Erez crossing has risen from what appears to be an all-time low in 2008, a year in which the criteria were particularly restrictive. That year, there were only about 2,000 crossings per month of Palestinians from Gaza to Israel, mostly medical patients and their companions, diplomats, and humanitarian aid workers.
These restrictions have devastated the economy in Gaza, separated families, blocked access to medical care and educational opportunities, thwarted reconstruction, and deepened the split between Gaza and the West Bank, a rupture exacerbated by the 2007 Palestinian factional split that left Fatah governing the West Bank and Hamas governing Gaza.
Israel withdrew from the Rafah border crossing between Gaza and Egypt in 2005, leaving Egypt and Hamas in control of their respective sides. Egypt has kept the Rafah crossing mostly closed since the 2013 overthrow of President Mohamed Morsy, reflecting strained relations between the new Egyptian government and the Hamas government in Gaza, which is affiliated with Morsy’s Muslim Brotherhood party. On the rare days that the Rafah crossing opens, once every several weeks, access is limited to the few thousand people who can cross before it closes. Priorities are determined by the Hamas government and the Egyptian authorities. In 2016, there were 3,520 crossings per month of Palestinians between Egypt and Gaza in both directions, compared with a monthly average of 34,991 in 2012. In other words, access for Palestinians between Gaza and Egypt is just ten percent of what it was in 2012, and the Rafah crossing is closed most of the time. Egypt had been the gateway to travel abroad for Palestinians in Gaza but is now mostly closed off to them.
Israel controls Gaza’s airspace and territorial waters and, citing security concerns, permits no air or sea travel to or from there.
For all these reasons, travel via the Erez crossing is the primary route for travel between Gaza, Israel, the West Bank, and foreign countries.
II. Access for Human Rights Workers
The umbrella organization PNGO, whose membership includes only some of Palestine’s civil society groups, lists 135 nongovernmental organizations working in fields such as development, culture, education, environment, and human rights. Dozens of Palestinian human rights organizations are either based in Gaza or conduct activities in Gaza. Among these are human rights organizations that research and report on violations of IHL or the laws of war, including during escalations of violence between Israel and armed Palestinian groups in Gaza. In addition, at least two Israeli human rights organizations conduct research in Gaza through permanent field researchers who live there, and foreign human rights organizations either employ permanent staff members or periodically conduct research in Gaza. Human Rights Watch has employed a permanent research assistant in Gaza since 2009.
Israeli Policy on Travel
The Israeli military considers both Gaza and the West Bank to be under a “closure,” meaning the default rule is that Palestinians may not travel into Israel or between Gaza and the West Bank unless they qualify for enumerated exceptions that change periodically. Following extensive litigation under Israel’s Freedom of Information Act, the Israeli Defense Ministry now publishes its criteria for travel between Gaza, the West Bank and Israel, called “permissions in the closure.” The criteria permit travel for patients seeking medical care outside Gaza and their companions, “senior merchants” purchasing goods from Israel or the West Bank, family visits for immediate family in cases of death, grave illness or weddings, elderly worshippers traveling to Jerusalem, visits to relatives incarcerated in Israel, and others. Senior merchants make up the largest category of Palestinians entering Israel, accounting for 54 percent of all crossings by Palestinians, with medical patients accounting for 21 percent.  The third largest category of people crossing are employees of international organizations, who constitute nearly 5 percent of all crossings by Palestinians into Israel from Gaza, more than 700 per month. This last category includes Palestinian employees or contractors of diplomatic representations or international aid organizations registered with the Israeli ministries of Social Welfare, Foreign Affairs, or Interior.
Belonging to one of these approved categories qualifies an individual to apply for a travel permit but does not guarantee they will receive one. Access in some categories is subject to quotas, and access for all travelers is subject to a security screening by the ISA. Such screenings are nontransparent, and when the ISA objects to granting a permit, little or no information about the nature of the security allegations are available to the applicant or their legal representative.
Human rights workers – Palestinian, Israeli or foreign – are not included in the categories of people eligible to travel through the Erez crossing. When Palestinian, Israeli or foreign human rights organizations request access for staff, visitors or volunteers, the Israeli government systematically refuses. In some cases, the Israeli military claimed that it would not allow travel for employees of human rights organizations because those organizations have not registered with the Israeli authorities as international organizations. Yet registration appears limited to diplomatic representations such as foreign embassies or the United Nations and “international aid organizations providing assistance to the Palestinian territories.” No publicly available procedure has been established for allowing human rights organizations to register. Since 2013, the Israeli human rights group Gisha has asked multiple government agencies for information regarding the supposed ability of international organizations, other than aid organizations and diplomats, to register for purposes of requesting travel permits, but no government agency has taken responsibility for such registration, and a procedure to request recognition does not appear to exist.
In a failed court challenge of that policy, brought by the Israeli human rights groups B’Tselem and Gisha when they sought permission for B’Tselem’s field researchers from Gaza to attend meetings and trainings in Jerusalem, the Israeli authorities explained the distinction they draw between humanitarian organizations and human rights organizations for purposes of travel into and out of Gaza:
As far as recognized international organizations are concerned, we are talking about organizations such as the International Red Cross, the World Health Organization (WHO), the United Nations Refugee Works Agency (UNRWA), the United Nations Development Corporation (UNDP), and the like, which work in the Gaza Strip and Judea and Samaria for the purpose of humanitarian assistance to residents of the Strip, including in areas such as welfare, education, health, etc.…
The policy, according to the Israeli government, promotes the foreign policy interests of the State of Israel by allowing passage for employees of certain international organizations and diplomatic representatives and workers whose passage is needed to fulfil Israel’s commitment “not to harm the humanitarian minimum that residents of the Strip need – including giving travel permits in appropriate humanitarian circumstances.”
The standard reply to travel requests from human rights organizations is that travel to and from Gaza is limited to exceptional humanitarian circumstances, and that travel to facilitate human rights work does not meet those criteria. As noted, the Israeli human rights group B’Tselem has repeatedly failed to get permission for its field researchers to leave Gaza for meetings with the rest of the staff in Jerusalem. The Gaza-based Palestinian human rights groups the Palestinian Center for Human Rights (PCHR) and al-Mezan Center for Human Rights continue to request permits for their staff members invited to workshops, trainings, meetings and conferences, but they routinely and repeatedly receive refusals.
While the explanation differs slightly, the Israeli military also refuses to allow foreign human rights workers living in Israel or visiting it to enter Gaza at least since 2012. Amnesty International, a leading human rights group based in London that has documented human rights and IHL violations in Gaza since the 1980’s, has tried for the last four years to get its staff into Gaza. The last time Israel granted permission was June 2012. When hostilities between Israel and armed Palestinian groups in Gaza erupted in November 2012, the Israeli military authorities refused or failed to respond to multiple requests from Amnesty International to enter both during and after the fighting. Amnesty International was able to get its staff into Gaza in 2012 via the Egyptian border, which was open at that time. By the next period of hostilities in July and August 2014, the Egyptian border had closed. Amnesty International submitted four separate requests to the Israeli authorities during the fighting, but the authorities refused. Immediately following the hostilities, Amnesty International appealed the refusal through an ombudsman branch of the Israeli military, also with no success. 
In July 2015, a lawyer acting on behalf of Amnesty International requested access for the group’s foreign staff. In September 2015, the Israeli military refused the request. 
Separately, Amnesty International approached the Israeli Foreign Ministry and the Israeli Ministry of Social Affairs to try to register as an international organization in order to obtain access to Gaza, but officials told Amnesty International that it does not fit the criteria for registration.
Human Rights Watch has also repeatedly tried to get its staff into Gaza, but beginning in 2009 the Israeli military authorities refused or failed to answer requests. During and immediately after the 2014 hostilities, Human Rights Watch made multiple unsuccessful requests to enter Gaza via the Erez crossing. In one response, the Israeli military authorities said they only accept requests from organizations registered with the Ministry of Welfare (limited to international aid organizations) or the Ministry of Foreign Affairs (limited to diplomats) and referred Human Rights Watch to another branch of the military. That department refused the request, saying that it only approved entry for doctors and medical staff. The authorities made an exception in September 2016, after seven years of refusals, and allowed two foreign staff members of Human Rights Watch to enter Gaza, after they requested permission to do so in order to advocate on behalf of Israeli civilians held by armed Palestinian groups in Gaza. The authorities categorized that positive response as a one-time exception, falling outside the criteria established by military policy.
As of 2013, the Egyptian authorities have also refused to allow foreign human rights workers to enter Gaza during one of the infrequent openings of the Rafah border crossing, effectively closing Gaza off from the global staff of these human rights organizations and external experts invited by local groups. Neither Human Rights Watch nor Amnesty International was able to get foreign staff into Gaza during or immediately after the 2014 hostilities. In justifying its restrictions on access via Rafah, Egypt says that assuring access to and from Gaza is the responsibility of Israel, which is an occupying power in Gaza, and it also cites the security situation in the Sinai Desert, the area in Egypt bordering Gaza where armed groups engage in violent confrontations with Egyptian security forces. Yet at other points in time, Egypt has managed to keep Rafah open, despite the activities of armed groups in Sinai.
In a recent letter to Human Rights Watch, the Israeli military explained why it does not permit foreign staff of human rights organizations to enter Gaza from Israel:
Exit by foreigners, lawfully present in Israel, from Israel into the Gaza Strip and their subsequent return to Israel raise the inherent risk associated with unmonitored travel between the Gaza Strip and Israel. This is partly the reason why it has been decided that exit from Israel into the Gaza Strip by foreign nationals will be permitted in humanitarian cases only and subject to the policy in effect at the time.
On the one hand, the Israeli authorities interpret the criterion “humanitarian” in a narrow way, to include humanitarian circumstances personal to an applicant, such as illness or mourning the death of a family member, but to exclude human rights workers conducting work with clear humanitarian implications, such as training in rehabilitating torture victims or security training to protect a staff member. On the other hand, within those same narrow criteria, Israel permits nearly 7,000 crossings by merchants each month for the purpose of buying goods and 700 crossings monthly by representatives of international organizations, where, especially in the case of the merchants, one person might make multiple crossings each month.
ISA Security Screenings
All requests to travel via the Erez crossing are subject to security screenings by the ISA or Shin Bet, as it is commonly known. In some cases, the military authorities reject requests to travel based on an individualized assessment that travel by a particular person poses a security risk. Human rights groups have criticized the lack of transparency and apparent arbitrariness of the screening process.
The policy described above, however, is a test that is applied to permit requests even before a person is screened by the ISA. In other words, the Israeli military first determines whether a person meets the eligibility requirement to request a permit, and only if the request meets the criteria do the military authorities consider an ISA evaluation. The refusals addressed in this report refer to refusals based on the first test: i.e. whether a person meets the criteria for travel. In some cases, human rights workers have been allowed to travel via Erez for a reason unrelated to their work in human rights organizations, meaning they have cleared the ISA screening, but when those same people request a work-related permit the military authorities refuse.
Impact on Human Rights Work
The restrictions on travel make it more difficult for human rights organizations – Palestinian, Israeli and foreign – to do their work documenting human rights and IHL violations and advocating against them. The Israeli human rights group Gisha documented some of these difficulties in an extensive study on the effects of the travel restrictions on 32 civil society organizations in Gaza and the West Bank, including human rights groups. By conducting interviews and focus groups, Gisha found that the inability to travel blocked access to training, impeded intra-organizational and inter-organizational working relationships and collaboration, contributed to waste and duplication of resources, made it harder to get funding, cut off access to stress-management and stress-relief opportunities, and made it more difficult for young civil society leaders to emerge and advance.
These obstacles have a direct effect on the work of human rights organizations documenting violations of the laws of war, including possible war crimes, and advocating for their remediation.
Palestinian Human Rights Workers in Gaza Isolated
Palestinian human rights workers living in Gaza find it very difficult to participate in trainings, conferences, workshops or meetings held outside Gaza, whether in the West Bank, Israel, or abroad. For Gaza-based employees of groups based in the West Bank, Israel or foreign countries, the lack of actual contact with colleagues and supervisors highlights a sense of isolation and makes it more difficult to develop and sustain the kind of working relationships that maximize productivity and creativity. Kareem Jubran, director of field research at the Israeli human rights group B’Tselem, supervises three field researchers working in the Gaza Strip. He was last able to meet two of them in 2012, when the Rafah crossing with Egypt was still open, and they traveled from Gaza to Egypt to Jordan to meet him and other staff members of the Jerusalem-based group:
The problem is with training … I’m always trying to explain things over the telephone. When we talk about the work plan, it takes time to discuss and persuade regarding what our needs are there, what we want. If I could give them more tools, research ability, theoretical knowledge regarding international law, it would help us a lot more. We are always trying to get them to trainings in Gaza, but it’s not the same as a program you build yourself. There’s also the emotional strain on them, the danger and the mental difficulty. A person like that needs to feel as if he’s part of a larger team. And he doesn’t have that feeling when he’s working in the field alone … they don’t know the staff, there are no human faces, and that affects the professional relationships … I felt that when I met them in Amman. After three years of telephone contact, I had developed a stereotype in my head of who they were. And then I discovered that their personalities were different. And from then on, it was easier to supervise them, to understand them, to know their sensitivities. It’s important for a long-term work relationship.
Human rights workers in Gaza report feeling cut off from others in their field and unable to communicate their perspectives at gatherings and conferences. Fadel Mezni is a researcher at the Palestinian Center for Human Rights (PCHR). “There is no exchange or updates of ideas and principles,” he said. “The Gaza representation – their voice is silenced. In addition to the personal cost of not developing professional skills, that is the deeper, wider cost.”
PCHR’s deputy director, Jaber Wishah, said that the inability to get staff out of Gaza meant that his organization could not bring its findings to international fora but rather had to rely on colleague organizations to represent its work. Advocacy is also difficult to plan, he said, because the group does not know if or when it can get staff outside, and when staff members get stuck outside Gaza waiting for the Rafah crossing to reopen, the cost of an extended stay strains the organizational budget.
Bahjat al-Helou is the training coordinator at the Gaza office of the Independent Commission for Human Rights, a statutorily-created commission that monitors human rights compliance by the Palestinian authorities. Its headquarters is in the West Bank. He said organizational planning was difficult across the two branches without the ability to meet face to face:
I wouldn’t say the quality of our work product is lowered. We work passionately and tirelessly. But it affects the impact of our reporting and fact-finding missions. We cannot present our work. Something is lost when the person from Gaza is relying on West Bank colleagues to present and run advocacy campaigns on our behalf.
Second, the travel restrictions mean that outside experts and human rights workers cannot get into Gaza, including for training or volunteer work. Wishah of PCHR said that even when he has been able to secure funding for external experts to train staff, that training has mostly taken place via teleconference, due to the inability to obtain permits. For similar reasons, PCHR has difficulty getting foreign interns and volunteers, and they often have to work out of a small PCHR satellite office in the West Bank.
During and after escalations of violence, especially, the inability to get external experts or even UN investigators and human rights experts into Gaza makes it difficult to conduct documentation and reporting on potential violations of IHL. During the large-scale military operation in July and August of 2014, the Israeli authorities refused repeated requests by the global human rights organizations Amnesty International and Human Rights Watch to send specially-trained emergencies researchers and weapons experts into Gaza. It also refused entry to a commission of inquiry established by the United Nations Human Rights Council to investigate potential crimes committed during the 2014 fighting. While researchers at Palestinian human rights groups inside Gaza have experience in documenting the conduct of hostilities, they do not have specialized weapons training and so rely on the engineering unit of the Palestinian police to analyze shrapnel and other remains in order to determine which weapons were used and how. In 2012, external weapons experts were able to enter Gaza via Rafah to support local human rights groups, but in 2014, no external experts were able to get in.
“It would have been helpful to have external weapons experts enter Gaza” in 2014, Samir Zaqout, field research unit coordinator at the Palestinian human rights group Al-Mezan, said.
Foreign Human Rights Groups Shut Out
The inability to get foreigners into Gaza is also problematic for international human rights organizations based abroad, even if they employ research assistants who are residents of Gaza.
The last time that Amnesty International was able to get staff members into Gaza was in 2012. In the summer of 2012, Israel granted permission for a delegation from Amnesty International to enter Gaza via the Erez crossing for a research project related to detention practices by the Gaza authorities. In November 2012, during the large-scale military operation, a delegation of two researchers and a weapons expert seeking to document IHL violations stemming from the conflict were not permitted to enter through Israel but reached Gaza via the Rafah crossing, which was open at that time. By 2014, however, Rafah had closed, and Israel rejected multiple requests to allow emergencies researchers and weapons and medical experts into Gaza from Israel. Instead, Amnesty International worked with two local researchers hired temporarily. The external team was not even able to get safety equipment, including helmets and flak jackets, to the local researchers. Saleh Hijazi, one of the researchers responsible for Israel and the occupied Palestinian territory who was based in the UK at the time, said that without the ability to work directly with staff on the ground, he felt like he was “managing the field researcher more than focusing on the research itself ... the questions weren’t necessarily what we needed. The photographs as well were sometimes meaningless.” He said the biggest problem was the lack of military and medical experts who could examine evidence first-hand. “It’s a major loss not having these experts on the ground,” Hijazi said.
The Amnesty International research team directed the local researchers by phone and Internet, and much time was spent uploading photos to be sent for analysis and sending researchers back to the field to bring supplementary information. Hijazi said that Amnesty International would have been able to do more research, and more quickly, had the team of experts been able to reach Gaza during the war and immediately afterward.
Human Rights Watch experienced similar difficulties during the 2014 war. With the exception of a one-time entry in September 2016, it was last able to get foreign staff members into Gaza via Israel in 2008. Thereafter, with one exception, the Israeli authorities refused or failed to respond to repeated requests to enter Gaza throughout the years. Until 2012, Human Rights Watch was able to get into Gaza via Egypt, but after Egypt closed the Rafah crossing to regular traffic in 2013, the Egyptian authorities also refused Human Rights Watch’s requests to enter Gaza, citing security. In 2014, the emergencies researcher, weapons expert and Israel and Palestine researcher directed the work of a consultant and a research assistant in Gaza via telephone and Internet communication. Communications with the staff on the ground were unreliable and slow. The consultant and research assistant would send photos and sketch the damage from the bombings for the weapons expert to review remotely, at best an imperfect solution.
Bill van Esveld was the Israel and Palestine researcher at the time for Human Rights Watch who directed the work of the consultant and research assistant from inside Israel:
There were a number of cases in which we needed more but we couldn’t go back, and so we dropped the cases … It’s not that we stopped reporting on them because we didn’t think there was a violation [of IHL], we stopped reporting on them because we couldn’t get the information we needed with the people on the ground that we had … It’s extraordinarily frustrating and demoralizing. Your job is to be in a place as an independent monitor. And you’re blinded. You’re not allowed to be in place, so you’re operating by remote control.
For Human Rights Watch, part of the benefit of having staff on the ground with extensive experience in conflict situations is the ability to make strategic decisions on the kind of research to make a priority, including distinguishing between IHL violations that are aberrations and violations that appear to be part of a policy. The lost time in communicating with local researchers and the lack of direct access to sites and victims limited the kind of research that Human Rights Watch could do.
In particular, not having foreign staff on the ground made it difficult to research issues that could put local staff at risk, such as IHL violations by armed Palestinian groups in Gaza. Hijazi of Amnesty International said that he was cautious to ask local staff to research violations by officials or armed groups inside Gaza that are considered sensitive, out of concern that they might be subject to retaliation. It was easier to do that kind of documentation, he said, with a foreign staff member who can travel in and out of Gaza and therefore be removed for safety reasons if necessary. Human Rights Watch has similar safety concerns and would also be better equipped to research potential IHL violations by armed groups or the Gaza authorities if its non-national staff were able to travel freely to and from Gaza. Human Rights Watch has documented arrests, harassment and torture of Palestinians in Gaza perceived to have gone too far in their criticism of the Hamas government.
Representatives of the Palestinian human rights groups al-Mezan and PCHR said that although it was sensitive for residents of Gaza to report on IHL and human rights violations by armed groups or Hamas, their groups had the clout and protection to be able to do so. During the 2014 military operation, PCHR published a statement condemning Hamas for the summary executions, many of which were captured in television footage, of at least 23 men accused of collaborating with Israel. A UN Commission of Inquiry, whose staff was not able to reach Gaza, raised concerns about additional IHL violations by armed Palestinian groups in Gaza, including deliberate and indiscriminate firing on Israeli civilians, putting Palestinian civilians at risk by firing from populated areas inside Gaza and storing weapons in civilian structures including schools. None of the human rights groups based in Gaza published research on these issues, however, or on any other alleged Palestinian IHL violation, other than the summary executions.
Indeed, in the past, Palestinians in Gaza who have criticized the government or armed groups on issues considered to be sensitive have faced retaliation. In 2012, the director of international relations at al-Mezan published an opinion piece criticizing the government and armed groups in Gaza for putting civilians at risk, including by storing weapons in civilian areas. Following the publication, unidentified assailants attacked him twice; the Gaza authorities made no arrests in the case. That incident is far from isolated. Human Rights Watch has documented arrests and physical abuse of journalists and activists who have criticized the Hamas government, directly or indirectly, and foreign journalists have complained about attempts by the Hamas government to censor their reporting, including during wartime.
III. Role of Human Rights Groups in Israeli Investigations
While the Israeli authorities limit the ability of human rights groups to conduct their work in Gaza, they nonetheless cite cooperation with human rights groups as an important element of their mechanism for investigating potential violations of the laws of war.
Palestine acceded to the Rome Statute of the International Criminal Court in January 2015 and gave the court a retroactive mandate to June 13, 2014, a period that includes the 2014 military operation in Gaza. The ICC prosecutor is currently conducting a preliminary examination into the situation. The Office of the Prosecutor’s ongoing inquiry includes analyzing whether national authorities are genuinely carrying out credible investigations and, if appropriate, prosecutions in relation to potential cases being considered for investigation by the court.
While the Israeli government has declined to cooperate with UN commissions of inquiry that have examined successive rounds of fighting in Gaza, and Israel has not acceded to the ICC treaty, it has issued a number of public statements that address the nature and adequacy of its domestic mechanisms for investigating and prosecuting IHL violations, including war crimes.
Cooperation Between Human Rights Groups and the Israeli Government
The View of the Israeli Government
In describing its mechanism for investigating and prosecuting IHL violations and other misconduct by soldiers and police, the Israeli authorities emphasize that human rights organizations help them to overcome a number of obstacles they face in learning about and investigating alleged IHL violations in the Gaza Strip. The Israeli military attorney general, who is responsible for investigating and prosecuting IHL violations among Israeli soldiers, notes that its investigations of violations that allegedly took place in Gaza are difficult because Israel no longer has a permanent ground troop presence there and cannot easily access physical evidence or witnesses:
First, the arena in which the crime was (allegedly) committed is – usually – outside the territory of the State of Israel, and in many cases in an area controlled by an enemy nation (south Lebanon) or hostile entities (the Gaza Strip). This fact significantly limits, and sometimes even completely thwarts, the ability of the investigators to visit the area and collect physical evidence found there … in addition, there are potential witnesses who hesitate to cooperate with the investigation because it is conducted by IDF officials, and there are others who refrain from providing relevant information about the activities of terrorist organizations in the area where the incident took place, out of fear of retribution.
In a position paper submitted to the Turkel Commission, an Israeli governmental inquiry that examined, among other things, the adequacy of the Israeli investigatory mechanism, then-Military Attorney General Avichai Mandelblit wrote:
Throughout the years, the military investigatory police have adopted various techniques that allow investigators to overcome many of the difficulties. Thus, there is a close relationship between the military investigatory police and human rights organizations representing Palestinian complainants, and through them, these complainants and additional witnesses are summoned to give their version of events. Assistance from human rights groups allows the investigators to overcome the fear of Palestinian residents from a meeting with IDF officials [emphasis in original].
According to the Military Advocate General’s office, the Israeli military receives information about possible IHL violations via individual complainants and human rights groups representing these individuals, as well as media and other reports of incidents.
Indeed, following the 2014 military escalation, the Israeli Foreign Ministry issued a report on Israel’s investigative mechanisms that emphasized the importance of an “active community of domestic and international non-governmental organizations, which are a source of many of the allegations of misconduct." The Foreign Ministry further noted that NGOs assist witnesses and victims in submitting complaints and providing more information to military investigators, and that human rights organizations act as a check on military decisions, appealing decisions to close investigations before the Israeli civilian authorities and Israeli courts.
The View of Human Rights Groups
The Israeli, Palestinian and foreign human rights organizations cited by the Israeli authorities have been publicly critical of the Israeli investigative mechanisms, and one of them, the Israeli organization B’Tselem, has announced that it will no longer cooperate with the Israeli military investigations, calling them a “whitewash.” Other groups continue to file complaints before the Israeli military authorities and even to facilitate witness testimony and supplementary information. The Palestinian human rights organizations al-Mezan and PCHR, working as part of a coalition to document alleged IHL violations in 2014, submitted 354 complaints to the Israeli military authorities.
At the request of the military authorities, these groups provided additional information in more than a hundred cases. Al-Mezan facilitated witness testimony at the Erez crossing in nine cases, and in four other cases, the witnesses declined to meet the military authorities, citing fear and concern about the psycho-social effects of revisiting the trauma through testimony. These groups are highly critical of the Israeli investigation mechanisms and have called for the International Criminal Court prosecutor to investigate the situation. However they confirm that they do proactively share their information with the Israeli military authorities, in an attempt to facilitate accountability for IHL violations and war crimes.
Yet the limitations the Israeli military places on the ability of human rights organization to operate raise questions not only about the ability of the Israeli authorities to investigate potential war crimes but also their willingness to do so. The Israeli military says that it relies on human rights organizations to provide evidence of alleged wrong-doing that it has difficulty obtaining because it has no investigators on the ground. Military investigators do indeed seek out information from these groups. Yet the Israeli military authorities systematically deny human rights groups the access they need to maximize their ability to detect and document potential serious crimes. For example, in 2014 the Israeli military’s refusal to issue permits meant that there were no independent weapons experts in Gaza who could review evidence directly, and the only weapons analysts available were those working for the Gaza authorities’ police department. The refusal to allow experts into Gaza – and the systematic refusal to permit human rights workers in Gaza to access the training and work meetings they need to do their jobs well – would seem to undermine the nature, extent and quality of the documentation that the Israeli military says it needs from human rights groups, compromising the capacity of the Israeli military to investigate potential war crimes. On the other hand, the policy of disallowing travel for human rights workers, in contrast to the hundreds of permits issued each month for humanitarian aid workers, for example, and the thousands of permits issued each month in total, also calls into question the willingness of the Israeli military to investigate potential war crimes. If the Israeli military was genuinely motivated to detect potential wrong-doing by soldiers and officers, why does it tie the hands of the human rights workers on the ground who, as the Israeli government acknowledges, are best-positioned to detect and document violations?
Response from Israeli Government
While preparing this report, Human Rights Watch sought and received comment and information from the Israeli authorities. In a response dated August 29, 2016, the military attorney general stated that it attributes “great importance” to its dialogue with human rights organizations, and that it maintains an “extensive and daily dialogue” with Israeli, Palestinian and foreign NGOs, including regarding allegations of misconduct during hostilities. The MAG’s Office said that it received 500 complaints relating to 360 individual incidents during the 2014 hostilities, some of which came from nongovernmental organizations. In addition, it said, it reviews reports published by Israeli, Palestinian, and foreign human rights organizations.
The MAG’s Office expressed criticism of those reports, writing that they “in many cases suffer from methodological, factual and legal flaws (for example, they rely on reporting from Palestinian sources without investigating their reliability, they identify terrorist activists as ‘civilians’ and incorrectly apply the laws of war). Sometimes these reports even exhibit a clear bias.”
However, the MAG’s Office wrote, “to the extent that these reports include information that is prima facie reliable and sufficiently concrete, the claims raised in these reports are passed along in order to make a decision about whether to open an inquiry or investigation or to receive a full picture as part of an ongoing inquiry or investigation.”
The MAG’s Office went on to write that “conducting investigations of operational incidents that took place during combat, in hostile territory, involves many difficulties. Despite these difficulties, the military investigative police make many efforts to conduct these investigations thoroughly, effectively and quickly, and receiving help from nongovernmental organizations is part of these efforts.” According to the MAG, human rights groups supply affidavits and physical evidence and facilitate witnesses giving testimony to military investigators.
The MAG’s Office did not directly address Human Rights Watch’s question regarding the apparent contradiction between the importance the authorities say they attach to the work of human rights organizations and the travel limitations they impose, but it said that the assistance provided by human rights organizations in inquiries related to the 2014 hostilities was effective, “despite unavoidable restrictions imposed on travel between Israel and the Gaza Strip due to weighty security and political considerations.”
IV. International Law
Israeli Obligations to Palestinians in Gaza
Israel significantly reduced its control over Gaza in 2005, when it withdrew its permanent ground troop presence and civilian settlements. However, it continues to control movement into and out of Gaza, except for the Rafah crossing, and it controls all crossings between Gaza and the West Bank.
Israel, of course, controls its own border with Gaza. It controls Gaza’s territorial waters and airspace, and, citing security concerns, does not allow people in Gaza to operate an airport or seaport, making them dependent on foreign ports for travel abroad. It also controls all travel between Gaza and the West Bank, irrespective of whether or not the traveler crosses through Israel. So even if a Palestinian human rights defender leaves Gaza for a trip to Europe and then flies to Jordan, Israel will not allow them to enter the West Bank to attend a meeting or workshop, even though they do not seek transit via Israel. Such control allows the Israeli authorities to control the Palestinian population registry, including deciding who will be listed as a resident of Gaza or the West Bank, and the rates for the customs and value added taxes that it collects on behalf of the Palestinian Authority on goods entering the common market. It controls a so-called “no-go” zone inside Gaza, near the border with Israel, which constitutes 17 percent of the territory of Gaza and a third of its arable land, as well as significant parts of Gaza’s infrastructure.
In light of these controls that Israel effectively exercises over the lives and welfare of Gazans, Israel continues to owe obligations toward Palestinians in Gaza under the law of occupation. This “functional” approach to interpreting Israel’s obligations, adopted by the International Committee of the Red Cross (ICRC), means that the framework of the law of occupation, including Article 43 of the Hague Regulations, applies to Israel’s regulation of movement to and from Gaza. This is how the ICRC explains it:
The ICRC considers, however, that in some specific and rather exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) but retain key elements of authority or other important governmental functions usually performed by an occupying power – the law of occupation may continue to apply within the territorial and functional limits of such competences. Indeed, despite the lack of the physical presence of foreign forces in the territory concerned, the retained authority may amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions of this body of norms. This is referred to as the ‘functional approach’ to the application of occupation law. This test will apply to the extent that the foreign forces still exercise, within all or part of the territory, governmental functions acquired when the occupation was undoubtedly established and ongoing.
The functional approach described above permits a more precise delineation of the legal framework applicable to situations in which it is difficult to determine, with certainty, whether an occupation has ended or not.
It may be argued that technological and military developments have made it possible to assert effective control over a foreign territory (or parts thereof) without a continuous foreign military presence in the concerned area. In such situations, it is important to take into account the extent of authority retained by the foreign forces rather than to focus exclusively on the means by which it is actually exercised. It should also be recognized that, in these circumstances, the geographical contiguity between belligerent States could facilitate the remote exercise of effective control. For instance, it may permit an occupying power that has relocated its troops outside the territory to reassert its full authority in a reasonably short period of time. The continued application of the relevant provisions of the law of occupation is all the more important in this scenario as these were specifically designed to regulate the sharing of authority – and the resulting assignment of responsibilities – between the belligerent States concerned.
While Israel claims that the law of occupation no longer applies to its actions toward Gaza, the official position of the ICRC, and of the United Nations, is that Israel remains an occupying power in Gaza.
The functional approach to the law of occupation means that responsibility is assigned commensurate with control. Where, for example, the Gaza authorities fail to protect human rights defenders who criticize the behavior of armed groups, it is they who bear responsibility because they operate a police force that controls daily life inside Gaza and should provide protection. But where, for example, the Israeli military refuses to allow human rights defenders to access training outside Gaza, it is the Israeli military that bears responsibility because it controls movement into and out of Gaza.
Article 43 of the Hague Regulations of 1907 outlines the powers and responsibilities of an occupying power. It authorizes an occupant to take restrictive measures that are militarily necessary but also requires the occupant to restore public order, meaning to facilitate normal civilian life to the extent possible. Israel is authorized to restrict travel for concrete security reasons, and it has the sovereign authority to regulate who crosses through Israeli territory, for example on the way to the West Bank or foreign countries, but it must balance its military needs and its authority to regulate who may enter Israel with its obligations to facilitate normal life to protected persons living under occupation.
As an occupying power, Israel also has an obligation to respect the human rights of Palestinians living in Gaza and the West Bank, including their right to freedom of movement throughout the Palestinian territory and the rights for which freedom of movement is a precondition, for example the right to education and the right to work. Palestinians enjoy a right to travel – without arbitrary restrictions – between the two parts of the Palestinian territory, Gaza and the West Bank, which Israel recognized as a single territorial unit, to leave the Palestinian territory and to return to it. Individuals also have a right to leave their own country. Under international human rights law, the right to travel can be restricted for security reasons and to protect public health, morals, public order and the rights and freedoms of others. Any such restrictions, however, must be proportional, and “the restrictions must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed.”
These obligations limit the ability of the Israeli government to restrict travel into and out of Gaza mostly to cases in which it is necessary to meet concrete, individualized security needs. The Israeli authorities also have an obligation to facilitate the proper functioning of civil society inside Gaza, including the human rights community which works to further protections for vulnerable members of society, develop democratic values and promote fundamental individual rights – all part of developing normal life in Gaza. There is an obligation to permit Palestinian human rights defenders to travel in and out of Gaza. However, Israel should normally not block the travel of foreign human rights defenders, present in Israel, who seek permission to enter Gaza.
The Israeli authorities should act in accordance with the United Nations Declaration on human rights defenders. The Declaration states that individuals and groups working to defend human rights should be able to access resources, that NGOs have an important role to play in protecting human rights, and that limitations on the work of human rights defenders should accord with applicable international obligations. Israeli authorities should consider the resources that Palestinian human rights defenders seek to access in the form of trainings abroad and foreign experts entering Gaza. In regulating access, they should take note of the role that human rights defenders play in developing and maintaining a society that protects and promotes human rights. While the declaration is not legally binding, it represents the consensus of the international community and enshrines rights protected in other instruments, such as the International Covenant on Civil and Political Rights. Respect for its principles can be seen as part of facilitating normal civilian life for Palestinians who have lived under occupation for the last 50 years and seek to develop and enshrine human rights protections as part of public life in the occupied territory.
Analysis of Israel’s Travel Restrictions
Israel’s current criteria for evaluating travel requests – citing generalized security threats to limit travel to exceptional humanitarian circumstances personal to the applicant – are inconsistent with these obligations. It is noteworthy that in some cases, human rights workers receive permits to travel via the Erez crossing for an event sponsored by an international organization, medical treatment or other non-work related reasons, but the Israeli authorities refuse to allow those same individuals to travel to further their human rights work. Normal civilian life in Gaza requires allowing people to access family members, educational and economic opportunities, medical care, and other rights for which freedom of movement is a precondition. Travel, including for human rights and health workers, is also necessary for meeting humanitarian needs, and it is required by Israel’s obligations, under the Fourth Geneva Convention, to facilitate humanitarian access in Gaza.
The restrictions imposed appear to contradict Israel’s own policy, as articulated by the most senior political and military officials including the prime minister, the defense minister and the army chief-of-staff, to improve living conditions in Gaza in order to enhance stability and security. A properly functioning civil society helps communities thrive.
Israel has the sovereign authority to determine who may enter its borders. But Israel is barring Palestinians in Gaza from traveling abroad via their own ports, thus rendering them dependent on Israel for access. In addition, its authority to bar entry into Israel should be balanced by the obligations it assumes as the occupying power and its signing of international agreements requiring it to allow Palestinians to travel and choose their place of residence within the single territorial unit that Gaza and the West Bank comprise.
Israel’s restriction on Palestinians traveling between Gaza and the West Bank is based on its characterization of the West Bank as a closed military zone and its characterization of Palestinians whose addresses are listed in Gaza within the Israeli-controlled population registry as foreigners with respect to the right to enter the West Bank. Based on that position, Palestinians with addresses listed in Gaza are barred from entering the West Bank via Jordan, through the Allenby crossing, which does not require entry into Israel. In other words, Israeli restrictions on travel for Gaza residents go beyond its interest in regulating who enters its own territory. They promote a policy to keep Palestinian residents of Gaza from entering the West Bank irrespective of whether or not that travel takes place via Israel.
Furthermore, Israel generally prevents foreigners, including human rights workers, already present in Israel, from crossing through the Erez crossing in order to reach Gaza. The substance of the restriction, therefore, is not refusal to allow foreigners to enter Israel but rather refusal to allow them to enter Gaza from Israeli territory, at a time when Israel is also preventing the operation of an airport or seaport that would allow independent access.
At the same time that Israel bars travel for human rights workers, since 2008 it has increased the number of crossings via Erez to thousands each month, a small fraction of the level of travel recorded prior to the outbreak of the second Intifada or uprising, but still an indication that, whatever security concerns may exist, much more can be done. Israel acknowledges that it weighs foreign policy considerations in determining which categories of Palestinians may travel, for example allowing travel at the request of diplomats from friendly nations or for football players, at the request of the world football organization FIFA. Israel should also take into account its obligations under IHL and human rights law and allow human rights workers the access they need to maximize the effectiveness of their work.
Egypt is not an occupying power in Gaza and therefore, despite the devastating effect that its border closure has on life in Gaza, its legal responsibilities toward Gaza residents are more limited than those of Israel. Like all parties to the Fourth Geneva Convention, Egypt should do everything within its power to ensure the universal application of the Convention’s humanitarian provisions, including protections for civilians living under occupation who are unable to travel due to unlawful restrictions imposed by the occupying power. Egypt’s obligations to permit access into and out of Gaza also include facilitating humanitarian access and supplies to persons affected by armed conflict. The Egyptian authorities should also consider the impact of their border closure on the rights of Palestinians living in Gaza who are unable to travel in and out of Gaza through other routes. They should ensure that their decisions are transparent, free from arbitrariness and take into consideration the human rights of those affected. They should consider possible additional responsibilities they may have under the right of transit, usually invoked in cases of enclaves or land-locked states, and enshrined in a number of bilateral and multilateral treaties. Gaza’s access to the sea for travel abroad has been blocked by Israel since 1967, rendering it dependent on neighboring states for transit. Given the importance of the Rafah crossing, Egypt should consider allowing transit via its territory, subject to security considerations. Certainly, Egypt has legitimate security concerns regarding the Sinai desert, but it should find a way to address them through means less extreme than total closure of the border, most of the time, especially considering the fact that it kept Rafah mostly open between 2010 and 2013, despite the activities of armed groups in Sinai during that time. The current border closures take place in the context of repressive activities taken against the Egyptian Muslim Brotherhood, which is allied with Hamas.
Egypt should normally permit passage for human rights workers, especially Palestinian workers and United Nations human rights investigators, into and out of Gaza. Egypt may also have additional duties under its human rights obligations, including the African Charter of Human and People’s Rights.
ICC Prosecutor’s Office’s Role
The ICC prosecutor should consider Israeli restrictions on travel by human rights workers in assessing whether Israeli domestic legal authorities can effectively investigate potential serious crimes committed in Palestine since June 2014, particularly in assessing what is known as “complementarity”. Under ICC rules and jurisprudence, the ICC will not prosecute alleged serious crimes if domestic proceedings are ongoing or have been conducted, unless the national authority is unwilling or unable to conduct genuine investigations and prosecutions. Even at the stage of preliminary examinations, the ICC prosecutor considers whether a case would be inadmissible due to the existence of genuine national investigations and prosecutions.
In its November 2016 report on ongoing preliminary examinations, the ICC prosecutor indicated that her office “will assess information on potentially relevant national proceedings, as necessary and appropriate.” In deciding whether a case would be admissible, the ICC prosecutor examines whether national proceedings are taking place and if so, whether the authorities are genuinely able and willing to investigate and prosecute. In the event that a person has already been tried for a crime or crimes, the ICC will not prosecute that individual for the same conduct, unless the domestic proceedings were not conducted independently or impartially in accordance with international due process norms or were conducted in a manner which, under the circumstances, “was inconsistent with an intent to bring the person concerned to justice.”
While the two criteria – willingness and ability – are distinct, the ICC pre-trial chamber often assesses them together, as they are related.
In assessing the willingness of national authorities to carry out genuine investigations, the prosecutor considers, among other things, whether the way the proceedings are conducted indicates an intent to shield persons from criminal responsibility. The prosecutor can assess such intent by indicators that include “manifestly insufficient steps in the investigation or prosecution,” “flawed forensic examination,” and “lack of resources devoted to the proceedings at hand as compared with overall capacities.”
In assessing the ability of national authorities to carry out genuine investigations, the prosecutor considers, among other things, “the ability of the competent authorities to exercise their judicial powers in the territory concerned” and “the absence of conditions of security for witnesses, investigators, prosecutors and judges or the lack of adequate protection systems.” The ICC’s pre-trial chamber has in the past considered a national authority’s inability to obtain the necessary testimony from witnesses as an indicator of its inability to conduct adequate investigations and prosecutions.
When it comes to the admissibility of cases being prosecuted, the assessment is holistic, with the ICC’s pre-trial chamber examining the entirety of the domestic proceedings, to determine their genuineness, including the availability of necessary witness testimony and documentary evidence.
At this preliminary stage, in which the ICC prosecutor is examining the willingness of the Israeli authorities to investigate and prosecute potential serious crimes committed as part of the 2014 hostilities, she should consider the contradiction between the importance that the Israeli authorities’ state they attach to the role of human rights groups in obtaining evidence and witness testimony – and the steps the Israeli authorities take to limit and constrain the work of those same groups, Palestinian, foreign, and Israeli.
In evaluating the ability of the Israeli authorities to conduct genuine investigations, the prosecutor should consider the restrictions imposed by the Israel authorities on human rights workers which have, in turn, limited their ability to collect evidence for potential cases. Human rights organizations can be essential in identifying possible victims and providing physical evidence gathered in the context of their own investigations, as the Israeli Military Attorney General’s Office notes. However, the very tight restrictions on travel by Palestinian human rights workers and the blanket ban on workers from foreign human rights organizations entering Gaza limit the scope of witness testimony and physical evidence that can be available to the Israeli authorities.
The prosecutor should consider the limitations on forensic evidence available to the Israeli authorities as a result of their refusal to allow outside weapons experts into Gaza and to allow human rights workers in Gaza to leave Gaza in order to obtain training and certification. Further, Palestinian victims and witnesses may not be easily persuaded to come forward in light of their high levels of distrust of Israeli authorities, making it even more difficult to bring forward criminal cases and making the effective interventions of human rights organizations even more critical.
To the extent that allowing more human rights workers to travel into and out of Gaza would require resources from Israel’s military and intelligence, Human Rights Watch notes that the Israeli authorities have devoted resources to accommodate travel requests from other categories of people, including merchants, football players, and VIPs. Against this backdrop, the limits on human rights workers seems especially difficult to justify.
 See Section I, infra.
 Hague Convention (IV) Respecting the Laws and Customs of War on Land, adopted October 18, 1907, 1 Bevans 631, entered into force January 26, 1910.
 Israeli Military Advocate General Corps, “General Exit Permit (no. 5) (Judea and Samaria),” West Bank, 1972; Corresponding Permit for the Gaza Strip.
 The Israeli Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, art. 31; Human Rights Watch, Israel’s Closure of the West Bank and Gaza Strip, vol. 8, no.3, July 1996, https://www.hrw.org/reports/1996/Israel1.htm; Gisha-Legal Center for Freedom of Movement, Separating Land, Separating People: Legal Analysis of Access Restrictions between Gaza and the West Bank, June 2015, pp. 3-4, http://gisha.org/UserFiles/File/publications/separating-land-separating-people/separating-land-separating-people-web-en.pdf (accessed August 4, 2016).
 Ibid, Gisha, Separating Land, Separating People, timeline on p.3. See also B’Tselem and Hamoked, One Big Prison: Freedom of Movement to and from the Gaza Strip on the Eve of the Disengagement Plan, March 2005, http://www.btselem.org/download/200503_gaza_prison_english.pdf (accessed August 4, 2016).
 Ibid, B’Tselem, One Big Prison, p. 13.
 A summary and analysis of official Israeli statements at that time are available in Gisha, Disengaged Occupiers: The Legal Status of Gaza, January 2007, pp. 22-26, http://www.gisha.org/UserFiles/File/publications_english/
Publications_and_Reports_English/Disengaged_Occupiers_en.pdf (accessed August 4, 2016).
 Israeli Ministry of Foreign Affairs, “Security Cabinet Declares Gaza Hostile Territory,” September 19, 2007, http://www.mfa.gov.il/mfa/pressroom/2007/pages/security%20cabinet%20declares%20gaza%20hostile%20territory%2019-sep-2007.aspx (accessed August 4, 2016). On the policy to restrict movement in order to weaken the economy in Gaza, see Albassiouni v. Prime Minister, Case no. HCJ 9132/07, State Submission of November 2, 2007, para. 44 (in Hebrew), http://gisha.org/UserFiles/File/Legal%20Documents_/fuel%20and%20electricity_oct_07/state_response_2_11_07.pdf (accessed August 4, 2016).
 Gisha, What is the Separation Policy?, June 2012, http://www.gisha.org/UserFiles/File/publications/Bidul/bidul-infosheet-ENG.pdf (accessed August 4, 2016); Gisha, The Separation Policy: List of References Prepared by Gisha, July 2014, http://gisha.org/UserFiles/File/publications/separation_policy_2014.pdf (accessed August 4, 2016).
 Kafarne v. Defense Minister, Case no. HCJ 495/12, State Response of August 16, 2012, para. 26 (in Hebrew), tinyurl.com/k3o8ckn (accessed August 11, 2016). Excerpts unofficially translated by Gisha are available at tinyurl.com/p4jc9x9 (accessed August 11, 2016).
 B’Tselem v. State of Israel, (Application no. 19657-08/13), Preliminary State Response of August 14, 2013, Beersheva, Appendix; Letter from Public Complaints Unit of the Gaza District Coordination Office in the Israeli Defense Ministry to Gisha, August 11, 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/preliminary_response_14.8.13.pdf (accessed August 4, 2016).
 Nandini Krishnan, Tara, Vishwanath, Angelica Thumala, Patti Petesch, Aspirations on hold? Young lives in the West Bank and Gaza (Washington, DC: World Bank, 2012) http://documents.worldbank.org/curated/en/200831468328798038/Aspirations-on-hold-Young-lives-in-the-West-Bank-and-Gaza (accessed March 3, 2016); Gisha, A Costly Divide: Economic Repercussions of Separating Gaza and the West Bank, February 2015, http://gisha.org/UserFiles/File/publications/a_costly_divide/a_costly_divide_en-web.pdf (accessed August 10, 2016).
 B’Tselem and Hamoked, So Near and Yet So Far: Implications of Israeli-Imposed Seclusion of the Gaza Strip on Palestinians’ Right to Family Life, January 2014, http://www.btselem.org/sites/default/files2/201401_so_near_and_yet_so_far_eng.pdf (accessed August 11, 2016).
 Palestinian Center for Human Rights, Actual Strangulation and Deceptive Facilitation, March 2016, pp. 31-33, http://pchrgaza.org/en/?p=7962 (accessed August 15, 2016); Physicians for Human Rights-Israel, #Denied: Harassment of Palestinian Patients Applying for Exit Permits, June 2015, http://cdn2.phr.org.il/wp-content/uploads/2016/04/Denied-2015-New-Report.pdf (accessed August 15, 2016).
 Gisha, Student Travel Between Gaza and the West Bank 101, September 2012, http://www.gisha.org/UserFiles/File/publications/students/students-2012-eng.pdf (accessed August 11, 2016).
 “Gaza: Donors, UN Should Press Israel on Blockade,” Human Rights Watch news release, October 12, 2014, https://www.hrw.org/news/2014/10/12/gaza-donors-un-should-press-israel-blockade.
 UN OCHA-OPT, “Rafah Crossing-Movement of People into and out of Gaza,” http://data.ochaopt.org/gazacrossing/index.aspx?id=2 (accessed February 9, 2017).
 Gisha, Scale of Control: Israel’s Continued Responsibility in the Gaza Strip, November 2011, pp. 12-14, http://gisha.org/UserFiles/File/scaleofcontrol/scaleofcontrol_en.pdf (accessed August 9, 2016). In 2001, Israel bombed the airport that had operated briefly in Gaza and destroyed the site where construction of a seaport was to begin.
 Gisha v. Coordinator of Government Activities in the Territories, (Application no. 22775-02-11), unpublished document on file with Human Rights Watch, Tel Aviv, January 13, 2013; Gisha v. Office of the Coordinator of Government Activities in the Territories, (Application no. 51147-05-13), unpublished document on file with Human Rights Watch, Tel Aviv, May 10, 2016.
 Department of Operations and Coordination, Coordination of Government Activities in the Territories (COGAT), Israeli Ministry of Defense, “Unclassified status of permissions for entry of Palestinians to Israel, their passage between Judea and Samaria and the Gaza Strip, and their departure abroad,” February 6, 2017 (in Hebrew), http://gisha.org/he/legal/procedures-and-protocols/ (accessed March 12, 2017).
 “Israel: Rules Curtail Family Visits for Gaza Prisoners,” Human Rights Watch news release, July 31, 2016, https://www.hrw.org/news/2016/07/31/israel-rules-curtail-gaza-family-visits-prisoners.
 OCHA OPT, “Erez Crossing.” Figures are for the first half of 2016.
 COGAT, “Status of permissions,” chap. 2, para. 6a.
 See, e.g., Musalam v. IDF Commander, Case no. HCJ 2748/12, unpublished document on file with Human Rights Watch, April 16, 2012 (in Hebrew), rejecting a request for the legal advisor of the Gaza Community Mental Health Programme to cross to the West Bank to receive training in rehabilitation for torture victims because, among other reasons, there was no humanitarian situation “specific to the petitioner.” See also email from Maj. Or Elrom, head of foreign relations and infrastructure section, Coordination and Liaison Administration to the Gaza Strip, to Human Rights Watch, August 14, 2014 (unpublished email on file with Human Rights Watch), rejecting a request to allow foreign staff members into Gaza because Human Rights Watch is not registered with the Israeli Ministry of Welfare or Ministry of Foreign Affairs; Letter from Captain Guy Shekel, legal adviser to Gaza DCO, Department of International Law, Israeli Military Attorney General’s office, to Gisha, February 3, 2014 (unpublished letter, in Hebrew, on file with Human Rights Watch), rejecting a request from the Palestinian Center for Human Rights (PCHR) to have a foreign doctoral student enter for meetings because the request did not raise exceptional humanitarian reasons, and PCHR is not a recognized foreign organization.
 Letter from Ofer Iko, Public Information Officer, Israeli Ministry of Social Welfare, to Gisha, January 27, 2014, http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/foreign_nationals/55.pdf (accessed August 5, 2016).
 Letter from Gisha to Attorney General Avichai Mandelblit, June 2, 2016 (unpublished letter, in Hebrew, on file with Human Rights Watch).
 B’Tselem v. State of Israel-Interior Minister, (Application no. 19657-08/13), Beersheva, State Preliminary Response of August 14, 2013, para. 10.
 B’Tselem v. State of Israel-Interior Minister, (Application no. 19657-08/13), Beersheva, State Response of September 17, 2013, para. 23 (in Hebrew), http://gisha.org/he/legal/4016/ (accessed July 27, 2016).
 See for example a letter from Public Affairs Department of COGAT to Gisha, August 12, 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/preliminary_response_14.8.13.pdf (accessed March 1, 2017); Musalam v. IDF Commander; Letter from Guy Shekel to Gisha, February 3, 2014.
 B’Tselem v. State of Israel-Interior Minister, (Application no. 19657-08/13), Beersheva, Petition of August 8, 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/petition.pdf (accessed August 10, 2016).
 Human Rights Watch interview with Jaber Wishah, deputy director of PCHR, Gaza City, November 11, 2015; Human Rights Watch telephone interview with Samir Zaqout, field research unit director of Al-Mezan, August 4, 2016.
 Email from Saleh Hijazi of Amnesty International to Human Rights Watch, August 17, 2016.
 Email from Maj. Or Elrom, August 14, 2014.
 Letter from Sec. Lt. Nir Yaron, civil application officer, Gaza CLA, COGAT, to Human Rights Watch, August 19, 2014 (on file with Human Rights Watch): “In these times, the state of Israel only lets doctors and medical staff crosses (sic) through the Gaza strip. Because your purpose of crossing is not a medical reason - your request is denied (emphasis in original).”
 Letter from Captain Guy Shekel, legal adviser, Gaza DCO, Department of International Relations, Military Attorney General’s Office, to Human Rights Watch, August 4, 2016 (in Hebrew).
 ”Sameh Shoukri: Rafah Crossing does not contribute to siege on Gaza,” ElWatan News, July 25, 2014 (in Arabic), http://www.elwatannews.com/news/details/527334 (accessed February 20, 2017); “Egypt closes Rafah border crossing with Gaza ‘until further notice’,” Middle East Eye, October 25, 2014, http://www.middleeasteye.net/news/egypt-rafah-772435585 (accessed March 2, 2017).
 Letter from Lieut. Coral Mel, public inquiries officer, Gaza District Coordination Office, to Human Rights Watch, January 11, 2016 (in Hebrew, on file with Human Rights Watch).
 Masalam v. IDF Commander.
 Letter from Sergeant First Class Adham Salame, Public Inquiries Department, Gaza District Coordination Office, to Human Rights Watch, December 1, 2015. The letter was sent in response to a request for a foreign staff member to enter Gaza in order to provide security training for an employee living in Gaza.
 OCHA OPT, “Erez Crossing,” Figures are for 2016; Gisha, “Erez Crossing;” Gisha, “Exit of Palestinians to Israel and the West Bank via Erez Crossing,” http://gisha.org/graph/2392 (accessed February 8, 2017).
 Human Rights Watch, “Process of Getting a Permit,” in Israel’s Closure; Association for Civil Rights in Israel, “ACRI: Rescind Shin Bet Prohibited Classification,” February 6, 2007, http://www.acri.org.il/en/2007/02/06/acri-rescind-shin-bet-prohibited-classification/ (accessed August 10, 2016); Gisha, “Security blocks restricting travel through Erez crossing,” December 2016, http://gisha.org/UserFiles/File/publications/Security_blocks/Security_blocks_factsheet_designed.pdf (accessed December 23, 2016).
 See for example B’Tselem v. Defense Minister, State Response of August 14, 2013, para. 16. One of the petitioners, a field researcher for B’Tselem, had crossed through Erez for reasons unrelated to his work three years prior to the petition. In paragraph 18, the state asserts that it did not request security screenings for the petitioners at the time of the petition because “their request does not fall within the criteria that permit entrance.”
 Gisha, “Split Apart,” March 2016, http://gisha.org/UserFiles/File/publications/civil_society/Split_apart_en.pdf (accessed June 24, 2016).
 Human Rights Watch phone interview with Kareem Jubran, field research director, B’Tselem, July 28, 2016.
 Human Rights Watch interview, Gaza City, November 8, 2015.
 Human Rights Watch interview, Gaza City, November 11, 2015.
 Interview, Jaber Wishah, November 8, 2015.
 Human Rights Watch telephone interview with Saleh Hijazi, Israel and OPT researcher, Amnesty International, July 22, 2016.
 “UN Commission of Inquiry on Gaza hears moving testimony, seeks access,” United Nations High Commissioner for Human Rights press release, December 23, 2014, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15456&LangID=E (accessed March 1, 2017).
 Human Rights Watch telephone interview, August 4, 2016.
 Telephone interview with Saleh Hijazi.
 “Israel/Egypt: Provide rights groups access to Gaza,” Human Rights Watch and Amnesty International news release, August 20, 2014, https://www.hrw.org/news/2014/08/20/israel/egypt-provide-rights-groups-access-gaza.
 “Palestine: Crackdown on Journalists, Activists,” Human Rights Watch news release, August 29, 2016 https://www.hrw.org/news/2016/08/29/palestine-crackdown-journalists-activists.
 PCHR, “PCHR Calls for Stopping Extra-judicial Executions in Gaza,” August 22, 2014, http://pchrgaza.org/en/?p=1590 (accessed August 11, 2016). The Independent Commission for Human Rights also documented the executions: ICHR, Monthly Report, August 2014 (published October 15, 2014), http://ichr.ps/attachment/35/August%20report-ICHR.pdf?g_download=1 (accessed December 15, 2016).
 United Nations Office of the High Commissioner for Human Rights, “Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict,” U.N. Doc. A/HRC/29/52, June 2015, http://www.ohchr.org/Documents/HRBodies/
HRCouncil/CoIGaza/A-HRC-29-52_en.doc (accessed July 15, 2016).
 See also “UNRWA strongly condemns placement of rockets in school,” UNRWA press release, July 14, 2014, http://www.unrwa.org/newsroom/press-releases/unrwa-strongly-condemns-placement-rockets-school (accessed July 20, 2016).
 “Gaza/West Bank: Investigate Attacks on Rights Defenders,” Human Rights Watch news release, January 19, 2012, https://www.hrw.org/news/2012/01/19/gaza/west-bank-investigate-attacks-rights-defenders.
“Palestine: Crackdown on Journalists, Activists,” Human Rights Watch news release, August 29, 2016, https://www.hrw.org/news/2016/08/29/palestine-crackdown-journalists-activists.
 Israeli Military Attorney General’s Office, “Inquiry and investigatory mechanisms regarding complaints and allegations about violations of the laws of wars,” Position Paper, December 19, 2010, pp. 4-5 (in Hebrew), http://www.turkel-committee.gov.il/files/wordocs/9111emPatzar.PDF (accessed December 1, 2016).
 Ibid, pp. 5-6.
 Israeli Military Attorney General’s Office, “Inquiry and investigatory mechanisms regarding complaints and allegations about violations of the laws of wars – additional information,” Position Paper, August 9, 2011, para. 6 (in Hebrew), cited in Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report – the Turkel Commission, February 2013, p. 336 para. 87, http://www.turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf (accessed July 10, 2016).
 Israeli Ministry of Foreign Affairs, Gaza Conflict: Factual and Legal Aspects, May 2015, para. 422, http://mfa.gov.il/ProtectiveEdge/Pages/default.aspx (accessed August 8, 2016).
 Ibid, paras. 439-440.
 B’Tselem, Occupation’s Fig Leaf: Israel’s Military Law Enforcement Mechanism as a Whitewash Mechanism, May 2016, http://www.btselem.org/download/201605_occupations_fig_leaf_eng.pdf (accessed August 7, 2016).
 Al-Mezan, Briefing Update: Israel’s investigations on criminal complaints submitted by Palestinian NGOs in Gaza on behalf of victims of attacks on Gaza in July and August 2014, November 2015, p.3, http://mezan.org/en/post/20953/
UPDATE%3A%3Cbr%3EBriefing+on+Israeli+investigations+into+%E2%80%8Ecriminal+complaints+submitted+by+Palestinian+NGOs+in+%E2%80%8EGaza+on+behalf+of+victims+of+attacks+on+Gaza+in+July+%E2%80%8Eand+August+2014%E2%80%8E (accessed August 5, 2016).
 Ibid, p. 4.
 Ibid, p.7; Palestinian Center for Human Rights, Annual Report, 2014, p. 87, http://www.pchrgaza.org/files/2015/annual_pchr_eng_2014.pdf (accessed August 9, 2016). See also “Palestine: ICC Should Open Formal Probe,” Human Rights Watch news release, June 5, 2016, https://www.hrw.org/news/2016/06/05/palestine-icc-should-open-formal-probe.
 A full English translation of the letter from the Military Attorney General is provided in Annex 2 of this report.
 See footnote 23 (Gisha, Scale of Control).
 Israel controls the Allenby Bridge land crossing between Jordan and the West Bank and ordinarily does not allow passage into the West Bank for Palestinians who are listed in the Israeli-controlled population registry as living in Gaza. Israel says that the West Bank is a closed military zone, and that Palestinians whose addresses are listed in Gaza in the Israeli-controlled population registry have no right to enter the West Bank, irrespective of whether they seek to transit through Israel. Ibid, p. 24.
 Ibid, pp. 17-19.
 Ibid, pp. 20-22.
 Ibid, p. 30.
 International Committee of the Red Cross, International humanitarian law and the challenges of contemporary armed conflicts, 32IC/15/11, November 2015, p. 12, https://www.justsecurity.org/wp-content/uploads/2015/11/2015-ICRC-Report-IHL-and-Challenges-of-Armed-Conflicts.pdf (accessed August 10, 2016). See also an article by the legal adviser to the ICRC on issues of occupation, writing in his personal capacity: Tristan Ferraro, “Determining the Beginning and End of Occupation,” International Review of the Red Cross, vol. 94, no. 885, Spring 2012, p. 157, https://www.icrc.org/eng/assets/files/review/2012/irrc-885-ferraro.pdf (accessed August 9, 2016).
 See for example Physicians for Human Rights v. Defense Minister, Case no. HCJ 10265/05, State Submission of July 11, 2006 (on file with Human Rights Watch); Hamdan v. Southern Military Commander and related cases, Case no. HCJ 11120/05, State Response of January 19, 2006, para. 26-29 (in Hebrew), http://tinyurl.com/l9ourfg (accessed December 15, 2016).
 Both the ICRC and the UN continue to refer to Gaza as occupied territory. See email from Yves Sorokobi, Office of the UN Secretary General Spokesperson, to Gisha, February 7, 2007 (on file with Human Rights Watch): “The UN welcomed the Israeli disengagement from Gaza in August 2005. However, there has been no change in our characterization of the Gaza Strip as occupied territory.” See ICRC, “Gaza Closure Not Another Year!”, June 14, 2010, www.icrc.org/eng/resources/documents/update/palestine-update-140610.htm (accessed December 14, 2016). See also Gisha, Scale of Control, pp. 29-30; Gisha, Separating Land, Separating People,” footnote 5, pp. 10-11.
 Hague Regulations concerning the Laws and Customs of War on Land.
 International Court of Justice (ICJ), Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ GL no, 131, ICJ Rep 136, July 9, 2004, paras. 106-113.
 International Covenant on Civil and Political Rights (ICCPR), art. 12. See also the Universal Declaration of Human Rights, Article 13, which reflects customary international law. Article 13 of the Universal Declaration stipulates that “everyone has the right to freedom of movement and residence within the borders of each state” and that “Everyone has the right to leave any country, including his own, and to return to his country.”
 International Covenant on Economic, Social and Cultural Rights, art. 13.
 Ibid, art. 6.
 ICCPR, footnote 92 (ICCPR), art. 12 (2).
 General Comment no. 27, CCPR/C/21/Rev.1/Add.9 (General Comments), paras. 13-15.
 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (“Declaration on human rights defenders”), adopted on March 8, 1999, G.A. Res 53/144, U.N. Doc. A/RES/53/144.
 Declaration on human rights defenders, arts. 13, 17, 18.
 United Nations Office of the High Commissioner for Human Rights, Fact Sheet no. 29, “Human Rights Defenders: Protecting the Right to Defend Human Rights.”
Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950, arts. 23, 50, 55-56.
 Gisha, “List of quotes by officials on security-access nexus,” July 4, 2016, http://gisha.org/UserFiles/File/publications/
Gaza_reconstruction_quotes.pdf (accessed August 12, 2016).
 The Israeli Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, art. 11. For a discussion of the application of the right to freedom of movement to the Palestinian territory, see Gisha, Separating Land, Separating People, footnote 5, pp. 17-25.
 Gisha, Rafah Crossing: Who Holds the Keys?, March 2009, pp. 162-7, http://www.gisha.org/UserFiles/File/publications/Rafah_Report_Eng.pdf (accessed August 11, 2016).
 Fourth Geneva Convention, art. 1. See also ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, July 9, 2004, paras. 155-160, finding that states have an obligation not to recognize the illegal situation created by the construction of the separation barrier in the West Bank.
 Elihu Lauterpacht, “Freedom of Transit in International Law,” in Transactions of the Grotius Society, vol. 44 (1958), p. 320; Convention on Transit Trade of Landlocked States, adopted July 8, 1965, 597 U.N.T.S. 3, entered into force June 9, 1967, art. 12.
 A 2014 complaint to the African Commission on Human and Peoples’ Rights (ACPHR) alleges that Egypt’s closure of its border with Gaza violates Charter provisions protecting the right to life, the right to freedom of movement and the right to self-determination. ACPHR, Communication 479/14 Palestine Solidarity Alliance and 5 others v. Egypt, ACHPR/COMM/EGY/ 479/14/02/262/15, 2014, https://www.scribd.com/document/258275977/Human-Rights-Council-Resolution-S-21-1# (accessed February 13, 2017).
 Rome Statute, arts. 17(1)(a) and 17(1)(b).
 International Criminal Court (ICC), Office of the Prosecutor, Report on Preliminary Examinations 2016, November 14, 2016, para. 145.
 Rome Statute, art. 20(3)(b).
 Policy Paper on Preliminary Examinations, para. 51.
 Ibid, para. 57.
 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case no. ICC-01/11-01/11-344-Red, Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi, May 31, 2013, para.209.
 See for example Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case no. ICC-01/11-01/11, Decision on the Admissibility of the Case against Abdullah al-Senussi, October 11, 2013, paras. 190-191, 202.
 COGAT, “Permissions in the Closure,” note 26.