ADVISORY EXPERT MEETING ON THE FOURTH GENEVA CONVENTION, GAZA 8 AND 9 AUGUST, 1998
INTRODUCTORY REMARKS
In its resolution ES-10/5 of 20 March 1998 the General Assembly reiterated once again its recommendation that the High Contracting Parties to the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War of 12 August 1949 (Geneva IV) convene a conference on measures to enforce the Convention in the Occupied Palestinian Territories, including Jerusalem, and to ensure its respect in accordance with Article 1 of that Convention, in which the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. It also reiterated its recommendation to the Government of Switzerland, in its capacity as depository of the Geneva Conventions, to undertake the necessary preparatory steps, including the convening of a meeting of experts in order to follow up on the above mentioned recommendation.
On July 15, 1998, the Swiss Government sent the Palestinian Authority a proposal for a mechanism for the application of Geneva IV in the occupied Palestinian territories. The Palestinian Authority requested the Palestinian Centre for Human Rights (PCHR) to give an advisory opinion on the position that the Palestinian Authority should take on that proposal and on its participation in any future meetings with the Swiss government. To fulfil this task the PCHR convened an a meeting of Palestinian and foreign legal experts in Gaza on August 8 and 9 1998 in order to give its views on the following legal questions:
(1) What are the responsibilities of the High Contracting Parties to Geneva IV, and of the Swiss government as its depository, as well as the United Nations, in respect of the de jure application by Israel in the Occupied Palestinian Territories, particularly after the conclusion between Israel and the Palestine Liberation Organisation as the representative of the Palestinian People of the Oslo Accords?
(2) How can the general position of the PLO that Geneva IV be implemented de jure be translated into specific demands and practical measures to that end?
(3) What will be the legal implications of achieving a Final Status Agreement between the PLO and the Israeli government and an eventual unilateral declaration of the Palestinian State in May 1999 on the applicability of Geneva IV? More specifically, how can it be ensured that the outcome of the Final Status Negotiations do not violate any provisions of Geneva IV before and after its eventual termination?
The ‘Advisory Meeting of Experts on Geneva IV’ presents the following conclusions and recommendations to the PCHR for its guidance of the Palestinian Authority on the issues raised in the above three questions, and in order to serve the interests of the Palestinian people protected under Geneva IV.
CONCLUSIONS
- Responsibilities
- Resolution ES-10/5 was adopted under the Uniting for Peace Resolution of 3 November 1950 – A/RES/377(V) – according to which the General Assembly shall consider a threat to the peace, breach of the peace, or an act of aggression in any case, where the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security.
- The General Assembly thus expressed its view that the continuing Israeli violations of Geneva IV, particularly after 1993, in the Occupied Palestinian Territories threaten international peace and security, and that the Security Council has failed to exercise its primary responsibility.
- Resolutions adopted by General Assembly Emergency Special Sessions on collective measures are recommendations to member States. They do not diminish the responsibilities of these States under international agreements. The High Contracting Parties to Geneva IV remain responsible for implementing their obligation to respect and to ensure respect for Geneva IV in all circumstances through the diligent application of the full range of policy instruments relevant to this end.
- The High Contracting Parties to Geneva IV who voted in favour of resolution ES-10/5 expressed the view that they consider the convening of ‘a conference on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem’, as a collective measure to protect international peace and security against threats posed by Israel’s persistent and systematic violations of Geneva IV and their damage to the ongoing peace process.
- By voting for this resolution the overwhelming majority of High Contracting Parties committed themselves to the convening of the conference recommended to them by the tenth Emergency Special Session.
- The recommendation of the tenth Special Session to the Government of Switzerland – a non-member State of the United Nations – does not release the High Contracting Parties from any of their individual obligations under Geneva IV, nor does it affect their above – mentioned commitment to convene a conference.
- The functions of the depository of a treaty are international in character. The depository is under an obligation to act impartially in its performance. The functions of a depository are administrative unless otherwise provided for in the treaty (Law of Treaties, Articles 76 and 77, which reflect customary law).
- Geneva IV does not provide for additional functions. In the event of any difference appearing between a State and a depository as to the latter’s functions, the depository shall bring the question to the attention of the signatory States and the contracting States, or, where appropriate, of the competent organ of the international organization concerned.
2. Position of the PLO
2.1 The general position of the PLO in respect of the de jure implementation of Geneva IV implies its intention to act as if it were a High Contracting Party.
2.2 In respect of the provisions of Geneva IV that are customary international law, the position does not change the obligations of the PLO which are peremptory norms of international law (jus cogens). In respect of other obligations under international customary law the position expresses the willingness of the PLO to act accordingly.
2.3 In respect of other treaty provisions of Geneva IV, the position may be interpreted and applied as expressing the willingness of the Palestinian State to become a High Contracting Party.
2.4 A State is obliged to refrain from any acts which would defeat the object and purpose of a treaty when it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty (Law of Treaties, Article 18).
2.5 The position of the PLO may be understood as an expression of its view that nothing will be done by it which would defeat the object and purpose of Geneva IV in general, and the position of protected persons in the occupied Palestinian territories in particular.
- Outcome of the Final Status negotiations
3.1 The agreed final status of the Occupied Palestinian Territories or a new declaration of Palestine statehood will have no effect on the existence of a state of belligerent occupation in the Gaza Strip and the West Bank, including Jerusalem, for so long as Israel continues to exercise any of the functions of government therein.
3.2 Statehood is not inconsistent with belligerent occupation. Rather it is typical that when territory is under occupation, there is sovereign power, even though that sovereign power is, temporarily, deprived of the possibility of exercising control over the territory.
3.3 The case of the occupied Palestinian territories is more complex, because during the time of occupation, Jordan renounced its claim to the West Bank and the PLO declared statehood in 1988. There is no reason, however, why, during an occupation sovereignty may not change, or sovereignty that was unclear might become clear.
3.4 The concept of control should not be confused with the concept of sovereignty. Control and sovereignty are distinct in a situation of belligerent occupation. Palestinian statehood, whether beginnin 1988 or 1999, does not affect the status of the territory as being under belligerent occupation. Belligerent occupation ends when the Occupying Power ceases to exercise or control any of the functions of the government in the occupied territories.
3.5 Protected persons who are in occupied territories shall not be deprived, in any case or in any manner whatsoever, of the benefits of Geneva IV by any change introduced, as result of the occupation of a territory, into the institutions or government of the said territory by the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory (Geneva IV, Article 47).
3.6 The Final Status Agreements have no impact on the application of Geneva IV nor has the latter Convention any impact on the final status of the occupied Palestinian territories.
RECOMMENDATIONS
1. The Advisory Meeting of Experts recommend that cognizance be taken of the following:
1.1 There can be no derogation from Geneva IV;
1.2 That whatever the legal status of the DOP and subsequent agreements, Geneva IV takes precedence;
1.3 That Geneva IV remains applicable throughout the West Bank (including East Jerusalem) and the Gaza Strip, thus Israel remains accountable for its actions to the extent that it exercises the functions of government in the Occupied Palestinian Territories. This accountability extends to actions committed by the Palestinian Authority under Israeli duress which amount to breaches of the Convention.
2. Accordingly it is further recommended:
2.1 That any arrangements or initiatives in relation to the Occupied Palestinian Territories must be fully in accordance with Geneva IV, and must recognize that the application of the Convention is non-negotiable. Accordingly meetings such as that held between Israel, the PLO, Switzerland (the depository for the Conventions), and the ICRC on 9 – 11 June 1998 (generally referred to as the ‘quadripartite meeting’), convened by the depository in response to UNGA Res. 10/4 of 13 Nov. 1997 cannot proceed on any basis other than that the de jure application of Geneva IV to the Occupied Palestinian Territories is given and is non-negotiable.
- That any mechanism put in place in response to the Resolution must be fully in accordance with Geneva IV, must be based upon the de jure application of the
Convention, and must not absolve, or appear to absolve, the High Contracting Parties of their responsibilities to ensure respect for the Convention. By reference to these criteria, the mechanism put forward by the Swiss Government must be considered defective;
2.3 That the High Contracting Parties be reminded of their obligations, and their pre-existing legal capacities, to repress grave breaches of the Convention;
2.4 That the High Contracting Parties be also reminded that the utilization of the Uniting for Peace Resolution in condemnation of Israeli violations in the Occupied Palestinian Territories implies that such violations constitute a serious threat to international peace and security.
2.5 That the depositary be also reminded of its obligation to act when called upon to do so in an impartial manner, and that it is reminded that its functions are administrative and facilitative unless otherwise called for;
2.6 That due caution, rigour and diligence be exercised by the PLO in order to ensure that protected Palestinian persons receive the full benefit of the Convention and that the de jure position is in no way prejudiced;
2.7 That a multi-layered approach be adopted to the question of the enforcement of the Fourth Geneva Convention in the Occupied Palestinian Territories, recognizing the threat which continuing serious violations, including grave breaches of the Convention, and particularly the maintenance and construction of settlements, present to the peace process, and to international peace and security;
2.8 That in view of the recommendation to the High Contracting Parties in UNGA Res. 10/4 of 13 Nov. 1997 to take measures on a national or regional level, that the initiative of the European Union in implementing the territorial applicability clause in the Interim Agreement on Trade and Trade-Related Matters with Israel be supported and endorsed as a suitable model for adoption elsewhere. It should also be made clear that the provisions of the Euro-Mediterranean Association Agreements requiring respect for human rights, include respect for the instruments of international humanitarian law;
2.9 That an immediate initiative be taken to convene a meeting of states, identified by their concern for breaches of Geneva IV in the Occupied Palestinian Territories, so that they may resolve to ensure full Israeli compliance with the Convention in whatever practical manner they may deem appropriate and effective in accordance with international law;
2.10 That all efforts be made to ensure that the actions taken by High Contracting Parties in response to the depository’s proposal for an expert meeting of High Contracting Parties following from such meeting, serve the end specified in the above paragraph;
2.11 That the above approach be complemented by a campaign to highlight violations of Geneva IV in the Occupied Palestinian Territories in preparation for the 50th anniversary of the Geneva Conventions.
9 August 1998
Names of experts:
. Paul de Waart – Netherlands
. John Quigley – U.S.A.
. Agneta Johansson – Sweden
. Colm Campbell – Ireland
. Per Stadig – Sweden
. Greg Nott – South Africa
. Lynn Welchman – United Kingdom
. Georges Henri Beauthier – Belgium
. Robert Remacle – Belgium
. Charles Shamas – Palestine
. Khader Shukirat – Palestine
. Mohammed Abu Harthiah – Palestine
. Raji Sourani- Palestine
. Issam Younis – Palestine
. Eyad El-Alami – Palestine
. Hamdi Shaqqura – Palestine
. Frauke Seidensticker – Observer, Switzerland
Trial Version
