Contested Statehood and Jurisdiction: Palestine and the Mangisto and al-Sayed Case

On 23 March 2023, the Committee on the Rights of Persons with Disabilities (the Committee) issued the first-ever decision against the State of Palestine of an international human rights body with the competence to hear complaints from individuals. The Mangisto and al-Sayed v the State of Palestine decision pertains to the disappearance of two Israeli nationals in Gaza. Palestine was found responsible for multiple violations of the Convention on the Rights of Persons with Disabilities (CRPD), despite lacking effective control over the territory where the violations occurred.

This post will question whether this decision is idiosyncratic of the CRPD; and whether another body could have found that Mangisto and al-Sayed were indeed within Palestine’s jurisdiction, and that Palestine was responsible for violations of their human rights. First, I will summarize the findings made by the Committee. As I delve into the details, I will critically assess whether the CRPD provides a stronger framework than other human rights instruments for safeguarding human rights in conflict-affected States. Then, I will explore whether the Committee addressed the jurisdictional question in ‘its own way’. Lastly, I will reflect upon the dual nature of Palestine’s statehood claim, highlighting how this decision both reveals the fragility of its claim and paradoxically serves as a driving force in affirming its statehood.

Mangisto and al-Sayed v State of Palestine

The case was submitted by the relatives of Hisham al-Sayed (a national of Israel of Bedouin descent) and Avera Mangisto (a national of Israel of Ethiopian descent), both individuals with diagnosed psychosocial disabilities. They were represented by the International Human Rights Clinic of the Hebrew University of Jerusalem, which argued that the victims’ psychosocial disabilities led them to cross into the Gaza Strip, ‘a hostile territory’, which subsequently resulted in their enforced disappearance and related violations (para 3.1). Videos published by the military wing of Hamas showed Mangisto and al-Sayed being detained and held incommunicado in the Gaza strip. The claimed violations encompass a range of CRPD rights, including the right to life (Article 10), the rights to liberty and security of person (Article 14), freedom from torture and cruel, inhuman or degrading treatment or punishment (Article 15), and the right to the highest attainable standard of health (Article 25). Additionally, the authors assert a violation of Article 11 of the Convention, which guarantees the right to protection and safety of persons with disabilities in situations of risk, including armed conflict and humanitarian emergencies.

Palestine responded to the complaint by arguing that Israel’s effective control over the military buffer zone in the occupied Gaza Strip makes the latter State responsible for investigating the alleged violations, questioning in this respect how the alleged disappearances went unhindered. Moreover, it noted that the blockade and restrictions imposed by the Israeli occupation forces limit its capacity to reach the occupied Gaza Strip and conduct investigations effectively. Finally, it pointed to the political division between the Palestinian Authority (PA) and Hamas, as well as Hamas’ control over the occupied Gaza Strip, as factors that hinder effective investigations.

The main question in terms of admissibility was thus whether Mangisto and al-Sayed, despite being in Palestinian territory, were indeed subject to its jurisdiction. The Committee addressed the challenge by reverting to the jurisprudence of the European Court of Human Rights (ECtHR), in particular to Ilascu and others v the Republic of Moldova and Russia. In that case, the Court acknowledged that a State’s ability to exercise its authority in part of its territory may be hindered due to factors such as military occupation by another State, acts of war or rebellion, or support from a foreign State for the establishment of a separatist entity within the State’s territory (Ilascu and others, para 312). A key point upon which the Ilascu judgment turned to was that even when its jurisdiction is limited, the territorial State ‘still has a positive obligation to take the diplomatic, economic, judicial or other measures that are in its power to take and are in accordance with international law to secure to the residents in such a territory the rights guaranteed by the European Convention’. (Ilascu and others, para 331; Mangisto and al-Sayed, para 7.3)

The obligation of Palestine to take positive measures towards individuals with disabilities within the Gaza strip, despite the constraints it faces over its assertion of jurisdiction, should moreover be read in light of Article 11 CRPD. Considering the vulnerability of the alleged victims, including their need for accessible healthcare, the general human rights and humanitarian situation in the Gaza Strip qualifies as a risk situation, thus requiring compliance with Article 11 of the Convention. Palestine, in the view of the Committee, has failed to undertake any actions, including engaging with the de facto authorities in the Gaza Strip (Hamas), to investigate the alleged victims’ fate and whereabouts, secure their release and safety, ensure access to appropriate healthcare considering their psychosocial disabilities, and facilitate communication with their families, despite the victims’ disappearances dating back to 2014 and 2015. Accordingly, the State of Palestine was found to have violated the victims’ rights under Articles 10, 14, 15 and 25, read alone and in conjunction with Article 11 of the Convention.

The Significance of Article 11 CRPD in the Mangisto and al-Sayed Case

During the drafting of the text of the CRPD, Article 11 looked much like a simple reaffirmation that the CRPD was not trumped by international humanitarian law. Nonetheless, it also includes other ‘situations of risk’, including humanitarian emergencies and natural disasters. As such, Article 11 goes beyond Article 38(1) of the Convention on the Rights of the Child, which emphasizes the obligation of States to ensure respect for the rules of international humanitarian law (IHL) which are relevant to the child.

Whether the phrasing of Article 11 –which requires States to ‘take, in accordance with international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disability in situation of risk’– does ‘create’ new obligations in situations of armed conflict is unclear. Somehow the Mangisto and al-Sayed case reveals that violations of IHL obligations can, thanks to Article 11, now be invoked as individualized enforceable rights. However, whether Article 11 CRPD added something to the obligations the State of Palestine has towards persons with disabilities under human rights and humanitarian law is not clarified. The Committee indeed found that Palestine’s failure amounted to violations of the right to life, the rights to liberty and security of the person, the prohibition from torture, and the right to the highest attainable standard of health, both independently and in connection with Article 11 of the CRPD. Perhaps the greatest advance in this case is the finding that there was a violation of the right to accessible and adequate healthcare, a socio-economic right that cannot be found in the European Convention, its Protocols or the International Covenant on Civil and Political Rights.

Could Another Body Have Found Jurisdiction?

In the Mangisto and al-Sayed case, the CRPD Committee took the ‘uncommon’ step of referencing the jurisprudence of the ECtHR to establish that the complaints did indeed fall within Palestine’s jurisdiction. This is not trivial. The Committee has had many jurisprudential clashes with the ECtHR with regard to the interpretation of the rights of persons of disabilities. In particular, there is firm disagreement between the two bodies on the extent of the right of persons with psychosocial disabilities to equal recognition before the law (Compare CRPD Committee, Budjdoso v Hungary, and ECtHR, Strøbye and Roselind v. Denmark). Moreover, the United Nations treaty bodies have been severely criticized for using unorthodox ways to find that conduct falls within a State’s jurisdiction, in particular with regard to cases dealing with issues such as climate change, rescue at sea operations, and the detention of nationals in foreign territories. The CRPD Committee itself issued a quite unconventional decision, in Sherlock v Australia, where it found that a person with multiple sclerosis who had had her visa application rejected on the ground that she needed to take several medicines was subject to Australia’s jurisdiction.

In the present case, the CRPD founded its entire reasoning on what Berkes considers to be ‘the dominant opinion on the territorial’s State‘s jurisdiction over a ‘grey zone’. (at 76). As such, it shows the willingness of the CRPD Committee to borrow from the European Court’s jurisprudence in matters in which it has developed a genuine expertise, perhaps hoping that the ECtHR will do the same with regard to the Committee in matters relating to the rights of persons with disabilities.

The Committee also supported the ECtHR’s case law by citing cases of the Inter-American Court of Human Rights and Concluding Observations of the HRC on Moldova, and Georgia, Concluding Observations of CAT on Ukraine, Concluding Observation of CRC on Iraq, and CESCR Concluding Observation on the Central African Republic. Although some of these, especially the IACtHR jurisprudence, are more exactly pertaining to the attribution of acts of non-state armed groups to the State, and the positive obligation to act in due diligence, they implicitly confirm that there is an irrebuttable presumption of jurisdiction of a State over its territory.

Ramifications of Mangisto and al-Sayed for Palestine’s Quest for Statehood

Palestine’s status as a State is, as most readers know, a highly contentious issue. Following its admission to UNESCO on 31 October 2011, Palestine has been on a marathon course to accede to international treaties as a strategy to affirm its statehood, and exercise its resulting rights (See Azarov here). As part of this quest, it obtained ‘non-member observer State’ status at the United Nations General Assembly, through GA Resolution 67/10 adopted in November 2012.

On 2 April 2014, the State of Palestine deposited instruments of accession to all core UN human rights treaties, except for the Convention on Migrant Workers and the Convention on Enforced Disappearance. The United Nations Secretary-General accepted that the State of Palestine fulfilled the necessary conditions for acceding to these treaties. In 2019, Palestine took the further step to accept and accede to the individual communication procedure of the Committee on the Elimination of All Forms of Racial Discrimination, the Committee on the Elimination of All Forms of Discrimination against Women, the Committee on the Rights of the Child, and the CRPD Committee. In February 2021, Pre-Trial Chamber I of the International Criminal Court issued a decision affirming that Palestine is a […] State Party to the Statute, and, as a result, a ‘State’ for the purposes of article 12(2)(a) of the Statute.’ (Para 112) Many have questioned what it means to be a State ‘for the purpose of a treaty’ (see, e.g., Ambos).

Controversies surrounding Palestine’s statehood arise from the dispute over its ‘defined territory’ and ‘effective government’, as outlined in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933. The ‘government’ element, which is at the crux of the Mangisto and al-Sayed case, encompasses not only the existence of a central authority but also the efficient execution of its functions, including territorial management, as well as the exercise of its legislative, executive, and judicial powers. Significantly, the State of Palestine’s response to the authors’ allegations highlights the challenges it faces in meeting this criterion, specifically referring to the Israeli occupation of the Palestinian territories and the Palestinian Authority’s limited control over Gaza, which has been under Hamas’ control since 2007. At the same time, Palestine’s ratification of the CRPD, acceptance of the individual complaint procedure, and responses to the authors’ allegations, reaffirm its capacity to enter into international relations, the fourth Montevideo criterion, which is somehow a corollary of sovereignty.

The CRPD Committee’s decision against the State of Palestine also evinces the collective recognition of the State of Palestine, a criteria not contained within the Montevideo Convention. It may be noted that the Montevideo Convention has been criticized by many for not reflecting the current state of international law, by not recognizing the statehood of accepted States, and encompassing entities that are not States as States. Collective recognition, which is at the center of the constitutive theory of statehood is, as Akande puts it, ‘a mechanism by which the international community can give effect to important community values that may affect claims of statehood’ (see Vidmar for more on collective recognition). Ineffective governance could thus be cured by the collective recognition of an entity that possesses the right to self-determination. This is indeed where the crux of Mangisto and al-Sayed lies: ratification of the CRPD, and acceptance of the individual communication procedure on the one hand, and lack of effective governance on the other.

Finally, the Mangisto and al-Sayed case, in particular the establishment of an irrebuttable presumption of jurisdiction over all of the Occupied Palestinian territory, and the obligation of the State of Palestine to take the diplomatic, economic, judicial or other measures that are in its power to take, are an affirmation of Palestinian sovereignty. Interestingly, the measures the Committee calls for form part of measures needed, according to the ECtHR, for the State to re-establish its control over its territory (Ilascu and others, para 339-344). This obligation to strengthen its jurisdiction over its territory is not made explicit by the CRPD Committee. A decision taking a stronger stance on the ‘obligation’ to re-establish territorial control would have certainly been more favorable to Palestine’s cause related to self-determination and to its claim that Israel is unlawfully occupying its territories. It would also have reaffirmed the PA’s authority over Gaza, instead of simply reiterating the need to consolidate the State of Palestine.

Photo: ‘Geneve Palais Wilson’ (Romano Camesi, 2011)