The Canadian Charter of Rights and Freedoms (the Charter), which came into effect under Part I of the Constitution Act, 1982, broadly defines a range of “rights and freedoms” that apply within the Canadian juridical context, and ensures that those rights and freedoms are protected under the law.
As Canadians, there are many rights and freedoms under the Charter which we likely take for granted. For instance, section 2 of the Charter outlines that everyone has “fundamental freedoms,” including “freedom of conscience,” “freedom of thought, belief, opinion, and expression,” “freedom of assembly,” and “freedom of association.” [1]
One can already bear witness as to how these fundamental rights and freedoms have been violated, as Canadians who express pro-Palestine sentiments have experienced forms of censorship and discrimination that are aimed at silencing them. These issues within Canada are in fact symptomatic of authoritarian practices that exist at interplay of various systems of settler-colonial sovereignty.
And if the effects of Israel’s settler-colonial project are capable of having such strong ramifications within Canada (which asserts itself to not be a settler-colonial state), then what do violations of inherent rights and freedoms look like for the Palestinians living in the occupied territories?
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Regarding the rights that apply to the Palestinian people, there are, firstly, modern rights that are covered by international law during times of war, and more specifically, instances of occupation. These include the Fourth Geneva Convention (part of the Geneva Conventions of 1949) as well as the more historic Hague Conventions of 1907. As scholar and activist Noura Erakat argues, these forms of international “occupation law” work to define the “temporary authority in an occupying power pending a political solution.” [2] Even within the context of temporary authorities granted to an occupying power, it is notable that Israel is famously in violation of these international laws.
Additionally, there are other forms of international human rights law, such as the United Nation’sUniversal Declaration of Human Rights (1948), which point to the fundamental rights all human beings are entitled to.
Much has been written about how international law, and the occupation law within it, have been routinely violated by the Israeli regime in the history of the occupation of Palestine, with little to no consequence.
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But what about other fundamental human rights, those independent of governments or laws – in other words, natural rights that every individual should be afforded to have? And how do these rights become denied to Palestinian people?
A quick glance at the Canadian Charter, which is itself modelled on the language of the UN’s Universal Declaration of Human Rights, may help to point us in the right direction.
The Right to Life
Take, for instance, the right to life. Under “Legal Rights,” Section 7 of the Charter states that
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” [3]
This fundamental right has its basis in Article 3 of the Universal Declaration – “Everyone has the right to life, liberty and security of person.” [4]
Indeed, given that “within settler modes of domination, the dispensability of the indigenous population is emphasized,” it should come to no surprise that the elimination of indigenous Palestinian ways of living is not only central to, but at the very start of the settler-colonial process. [5]
What are some other fundamental human rights that Palestinians today are denied?
The Right to not be Arbitrarily Detained or Tortured
Section 9 of the Canadian Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned,” corresponding to Article 9 of the Universal Declaration (“No one shall be subjected to arbitrary arrest, detention or exile.”) [6]
Similarly, Section 12 of the Charter states that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment,” corresponding to Article 5 of the Universal Declaration (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”) [7]
However, images of Palestinians being wrongfully detained, imprisoned, and tortured by the Israeli Occupation Forces (IOF) are by this point imbedded into the minds of any individual knowledgeable on the current atrocities taking place in occupied Palestine.
Or the numerous photos which appeared in December 2023 of a great number of Palestinian prisoners, stripped of their clothing upon arrest by Israeli forces, while they continued to be moved to unknown locations?
Indeed, perhaps one such fundamental right that we may take for granted the most is the one that comes next and relates very closely not only to the indigenous attachment to the land, but also with the aforementioned concept of forced exile.
The Freedom of Movement
Section 9 of the Canadian Charter demonstrates the importance of the freedom of movement: part 1 states that “Every citizen of Canada has the right to enter, remain in and leave Canada,” while part 2 states that Canadian citizens and permanent residents have “[the right] to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province.” [8]
These fundamental freedoms correspond with Article 13 of the Universal Declaration: “Everyone has the right to freedom of movement and residence within the borders of each state.” [9]
Writing in 1982, one scholar noted that, in relation to expatriated Palestinians,
“the word [exile] has of course a particularly tragic significance for the Palestinians. More than two million Palestinians living outside Palestine regard themselves as exiles from their homeland; their bitterest grievance is the refusal of the Israeli authorities to allow them to live in the land where they or their parents were born and brought up.” [10]
It is noteworthy to mention in addition to these forcibly expatriated citizens are the Palestinian refugees who have been relocated within the regions occupied Palestine itself due to the 1948 Nakba and beyond. For instance, the “Palestinian refugees in Gaza have made it clear their future is not the Strip nor resettlement outside of their ancestral land.” Key movements of resistance against Israeli settler-colonial practices, such as that of the Great March of Return, which involved the “demand [of] dignity and the right to return,” are exemplary of this fact. [11]
Today, the world can attest to the violations on the freedom of movement as Israeli forces continue to push both the residents of Gaza as well as Palestinian refugees living in Gaza, further south to the Rafah border.
There are many more fundamental rights and freedoms found in either the Canadian Charter of Rights and Freedoms (1982) or the UN Universal Declaration of Human Rights (1948) which today are grossly abused and violated by the Israeli state against the Palestinian people. Indeed, a cursory reading of the Universal Declaration shows that Israel is currently in violation of at least 15-20 of the 30 listed articles. As some scholars argue, Palestinians have had their natural and fundamental human rights stripped from them since the very start of the British Mandate. [12]
However, any fulsome understanding of the rights Palestinians are entitled to involves not simply an analysis of what rights have been denied and deprived, but a complete comprehension of “the nature of the state of Israel” itself. [13]
The Palestinian right to life, self-determination, and freedom are, in essence, the fundamental rights and freedoms of which it is the aim of the Israeli settler-colonial project to destroy.
Bibliography
[1] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, “Part 1: Canadian Charter of Rights and Freedoms,” Canadian Legal Information Institute. https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html
[2] Erakat, Noura. Justice for Some: Law and the Question of Palestine (Stanford: Stanford University Press, 2019), pp. 69.
[3] The Constitution Act, 1982, supra note 1.
[4] The United Nations. Universal Declaration of Human Rights (1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights.
[5] Charrett, Catherine Chiniara. “Gaza, Palestine, and the Political Economies of Indigenous (Non)-Futures,” in Political Economy of Palestine: Critical, Interdisciplinary, and Decolonial Perspectives, eds. Alaa Tartir, Tariq Dana, and Timothy Seidel (Middle East Today: Palgrave Macmillan, 2021), pp. 198.
[6] The Constitution Act, 1982, supra note 1; The Universal Declaration of Human Rights, supra note 4.
[7] Ibid.
[8] The Constitution Act, 1982, supra note 1.
[9] The Universal Declaration of Human Rights, supra note 4.
[10] Adams, Michael. “The Universal Declaration of Human Rights and the Israeli Occupation of the West Bank and Gaza,” in Palestinian Rights: Affirmation and Denial, ed. Ibrahim Abu-Lughod (Illinois: Medina Press, 1982), pp. 73.
[11] Charrett, Catherine Chiniara. “Gaza, Palestine, and the Political Economies of Indigenous (Non)-Futures,” in Political Economy of Palestine, pp. 199.
[12] Abu-Lughod, Ibrahim (ed). “Retrieving Palestinian National Rights,” in Palestinian Rights: Affirmation and Denial, pp. 4.
[13] Hallaj, Muhammad. “Israel’s Palestinian Policy,” in Palestinian Rights: Affirmation and Denial, pp. 95.
