International law

8 Sep 2011
2 Jan 2013

Freedom of protest is enshrined in Article 21 of the International Covenant on Civil and Political Rights, which also permits the balancing of this liberty against other interests, which states:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Israel frequently argues that human rights law does not apply to its actions in the West Bank. However, this position is rarely supported by non-Israeli jurists or other countries, citing the widely accepted argument that human rights law is applicable alongside International Humanitarian Law, which applies in cases of armed conflict or occupation. According to this argument, human rights law is valid in all situations, although on occasion, in combat situations, concrete provisions of Humanitarian Law override it. Accordingly, in the absence of any concrete provision in Humanitarian Law permitting infringement of the rights granted to civilians in Human Rights Law, the latter must be observed. Since International Humanitarian Law does not address freedom of protest, its upholding in an occupied territory must be examined in accordance with Human Rights Law.

Moreover, the authors of International Humanitarian Law envisaged an occupation lasting for a limited period of time. The restrictions this law imposes, both on the occupier’s powers and on the rights of civilians, derive from the temporary nature of the occupation. However, the situation in protracted occupation is different. It is unreasonable that a population subject to occupation for decades be denied basic rights on the grounds that these are not enshrined in International Humanitarian Law.