LAW

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Fax: + 972 7 583 3317

Palestinian Centre for Human Rights

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Rimal, Gaza

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Fax: +972 7 282 3725

 

 

Petition

Submitted to High Contracting Parties to the Fourth Geneva Convention

on the

Anniversary of High Contracting Parties Meeting on Enforcing Israel’s Respect of the Fourth Geneva Convention

 

15 July 2000

 

 At the meeting on 15 July 1999, the High Contracting Parties resolved:

Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.

Over the past year, existing Israeli violations of the Convention have continued, and further violations have been committed, which constitutes a deterioration of “the humanitarian situation in the field.” These developments must be viewed with grave concern. Accordingly, High Contracting Parties must renew efforts to meet their obligations under Article 1 of the Convention, which calls on them “to respect and to ensure respect” of the Convention.

This petition consists of two parts. The first (p. 2) provides a short, factual summary of Israeli violations against Palestinians since July 1999. These include “grave breaches” as outlined in Article 147 of the Convention as well as “serious breaches” involving transfers of population in and out of occupied territory (Art. 49) and breaches arising from the construction, maintenance and expansion of settlements (Art. 49).

Our aim is to highlight Israeli abuses in the year since the conference, thereby precipitating action and the reconvening of the conference of High Contracting Parties. It must nevertheless be stressed that existing violations, such as the presence of settlements, constitute continuing breaches and testify to a continuous pattern of violations by Israel, which the High Contracting Parties have an obligation to address.

The second part (p. 12) specifies the legal obligations of High Contracting Parties in the context of Article 1. It shows that High Contracting Parties should currently be taking measures required by the Convention. In light of Israel’s continuing disrespect of the Convention, moreover, High Contracting Parties are obliged to reconvene the conference and take steps to ensure this respect.

 

PART I – A SURVEY OF VIOLATIONS AND POLICIES SINCE 1999

Article 147: Grave Breaches of the Fourth Geneva Convention “involving any of the following acts, if committed against persons or property protected by the present Convention:”

 

  1. “…wilful killing … wilfully causing great suffering or serious injury to body or health”

    Unlawful Killing

    During 1999, Israeli forces and settlers killed 14 Palestinians in circumstances indicating criminal responsibility. In each case Israel failed to meet its Article 147 duties to protect Palestinians from grave breaches, including prosecuting offenders. Seven were killed by the Israeli military, one by the Israeli police and two by settlers; two Palestinians died in Israeli prisons and two were killed by landmines.

    From the beginning of this year until 10 July, 15 Palestinians died in circumstances indicating unlawfully killing. One died in police custody, apparently after being tortured, though the police claim that he committed suicide; four Palestinians died during a shoot-out when Israeli police raided the house of suspected Hamas members in the village of Taybeh; seven were killed during clashes at demonstrations; three were killed by Israeli soldiers at checkpoints, including a 43-year-old mother of twelve children and a mother of three, who was shot dead whilst riding in a taxi in the vicinity of the Kfar Darom settlement in the Gaza Strip – her husband was injured in the chest and her seven month-old baby was shot in the head and remains in critical condition.

    In June 2000, in what appears to be an attempted extra judicial execution, 39-year-old Radi Safi was ambushed and shot by Israeli undercover agents whilst travelling by taxi from Bethlehem to the nearby village of Al Abedia.

    In May 2000, the Israeli security forces used excessive force at demonstrations held in solidarity with hunger striking Palestinian political prisoners. Seven people were killed, two of whom were under the age of 18, and over 1600 people were injured. In order to disperse the demonstrators, Israeli forces used tear gas canisters, sound bombs, rubber-coated metal bullets and live ammunition. Most of the injuries were incurred on the upper part of the body, in breach of international standards on firearms.

    Excessive force may also have caused the death of a 62-year-old woman in February 2000, who died from a heart attack after Israeli security forces raided her home.

    In July 2000, the explosion of discarded ordnance killed two boys, aged 16 and 12. The Israeli army frequently leaves behind unexploded ammunition and no warning signs are placed around training areas. Since 1988, we estimate that 54 Palestinians have been killed by unexploded IDF ammunition. This figure includes 39 children under the age of 18.

     

  2. “…torture or inhuman treatment … or wilfully depriving a protected person of the rights of a fair and regular trial…”

    Torture and Inhuman Treatment

    On 6 September 1999, the Israeli Supreme Court, sitting as the High Court of Justice issued its ruling on a number of applications submitted by human rights groups against the use of torture by the Israeli General Security Service (GSS). In its ruling the Court found that the GSS had been systematically employing illegal methods of torture in its interrogation of Palestinian detainees.

    However, despite finding that the methods employed by the GSS were illegal and contrary to both the Israeli Basic Law and to international law (including the Convention Against Torture) the Court, later in its judgment, declined to take a stand on the legality of the use of physical force in “special circumstances” (such as the so-called ‘ticking bomb’). Rather, the Court held that under current Israeli law the GSS was not authorised to employ such methods and that,

    “If the State wishes to enable GSS interrogators to utilise physical means in interrogations, it must seek the enactment of legislation for this purpose.” (para 37)

    After the Court’s decision on 15 September 1999, the Ministerial Committee for GSS Affairs, headed by Prime Minister Barak, established a commission to examine the subject, and to “find a lawful solution to the use of physical force of interrogations of terrorist suspects, where there is an immediate security danger”.

    Although no measures were introduced by the Government, in October 1999, a bill sponsored by Reuven Rivlin, leader of a faction of the Likud party, and signed by over 40 of the 120 Knesset members, was submitted to the Knesset. The bill proposed allowing GSS interrogators “to use special methods in interrogating [a] person, including means that entail the use of physical pressure on his body,” where there is reasonable suspicion to believe that a person has information, which, if immediately revealed, could prevent an immediate danger to state security. The bill seeks to effectively overturn the High Court decision outlawing interrogation methods which constitute torture and to revert to a situation where permission to use special interrogation methods in exceptional circumstances allowed the GSS to torture approximately 30,000 Palestinians.

    Nonetheless, in direct violation of Article 146 of the Fourth Geneva Convention, it was reported that the Attorney General promised GSS officials that he would not prosecute GSS interrogators who were “compelled to use special means” – meaning torture – in singular cases.

    Although systematic use of these methods prohibited in the High Court decision of 6 September 1999 has ceased, information gathered by human rights organisations and lawyers indicates that, in cases, the GSS interrogators are employing methods amounting to torture or ill-treatment. Moreover, since the High Court ruling there has been a reported increased in the use of incommunicado detention and a worrying level in the use of isolation units.

    The High Court ruling in September did not address the issues of compensation and rehabilitation for torture victims; nor did it demand the prosecution of those responsible of committing torture. Furthermore, despite the court’s finding that that the GSS had been systematically employing illegal methods of torture in its interrogation of Palestinian detainees, the decision did not address the implications of this finding regarding the thousands of Palestinians tried and convicted on the basis of evidence obtained through the illegal use of torture.

    Article 147 also defines as a grave breach the wilful deprivation of the right to a fair and regular trial.

    In Israeli military courts and military appeal committees, trials of Palestinians do not meet the minimum standards for a fair trial for the following reasons:

     

    1.  
      1.  
        1. Lawyers are often not notified of the time and place of the trial.
        2. In some cases the court does not allow the lawyer or the defendant to see the bill of indictment.
        3. Trials are delayed without reasonable justification.
        4. In some cases trials are held in the absence of the defendant, and appeals are heard in the absence of the defendant’s lawyer.
        5. In many cases trials are not translated into Arabic.
        6. Trials are not always public.
        7. The court tends to accept evidence of the Israeli military against Palestinians and convicted defendants on confessions obtained during torture.

    In a recent example, Nabil Abu Oukel from the Gaza Strip was arrested on 1 June 2000 and detained in Israel for more than a month without charges being brought against him. His detention was extended by court decision on 28 June 2000, without his presence. His lawyer was prevented from visiting him through this period. On 3 July 2000, Abu Oukel’s detention was extended for a further fifteen days, this time he was present in the court, but the judge prevented his lawyer from speaking with him. Still no charges have been brought against him.

     

  3. “…extensive … appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

    Article 47”Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory…”

     

    Article 46 of the Hague Regulations

    “Family honour, rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”

     

    Land Confiscation

    Since 1967, every Israeli government has pursued the expansion of Israeli control over Occupied Palestinian Territory through the establishment of Jewish-only settlements. These constitute continuing violations of the Fourth Geneva Convention.

    The confiscation of Palestinian land is accompanied by discriminatory administrative procedures specifically designed to deny Palestinians access (for renting or building) to confiscated land. Use of “state land” is restricted to 1) Israeli citizens, 2) emigrants to Israel under the Law of Return, 3) those entitled to the status of immigrant under the Right of Return (meaning a Jew by descent or religion), 4) companies controlled by (1) or (2) or (3).

    No figures yet exist regarding how much land has been confiscated since 1967, but unofficial estimates published by Amnesty International show that 41% of West Bank land was confiscated in 1984, this percentage had increased to 60% by 1991 and to 73% by 1998. We estimate that from January to October 1999, 25,550 dunams of Palestinian-owned land was confiscated by the Israeli army or by settlers, while 108,000 dunams of land was closed off by the military in October 1999. In some cases, villagers were given eviction notices while in others their movement on military-closed land was severely restricted, especially for grazing livestock. The impact of confiscation is enormous. A family or an entire village loses their primary source of income, thus increasing social pressures and threatening the living standards of the community.

  4. “…extensive destruction … of property, not justified by military necessity and carried out unlawfully and wantonly.”

 

Article 53

“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

 

 

Home Demolitions

The second Israeli policy aimed at controlling land is the demolition of Palestinian homes. The Israeli government states that home demolitions occur because the owners of these houses have built illegally, without a permit, on Israeli “state land,” inside “green areas,” on land not zoned for building, or on land zoned for agricultural or security purposes. Such rules and zoning restrictions, however, are purposefully manipulated and applied to Palestinian residents alone.

Almost all of the homes that have been demolished or been the subject of demolition orders lie near Jewish settlements, by-pass roads, along the green line, in areas meant to prevent territorial continuity between Palestinian areas or near Israeli military installations. Some are located in the path of planned future by-pass roads and targeted sites for settlement expansion. In issuing these orders and demolishing homes, the Israeli government is attempting to clear Israeli-controlled Area C of its Palestinian residents prior to a final status agreement. Below are a few facts that testify to Israel’s policies.

 

  1. In 1999, 460 Palestinians received notification that their homes or barracks would be demolished. Most of these homes are in East Jerusalem and in the Hebron district.

     

  2. Seventy-four Palestinian homes were demolished between January and November 1999.

     

  3. On November 22, 1999, six Palestinian homes were demolished in Khan Younis, Gaza Strip. These demolitions made way for the expansion of a nearby settlement.

     

  4. Currently, there are 4,000 outstanding demolition orders in the West Bank and East Jerusalem. The 2,000 orders pending in East Jerusalem affect 10,000 Palestinian housing units.

     

  5. In the village of El Khader, Bethlehem district, three homes were demolished in a single day in November 1999. Currently all 40 homes in the village, in addition to all attendant infrastructure, are slated for demolition.

 

Once the land has been confiscated and the Palestinians are confined to the boundaries of their village awaiting the demolition of their homes, the Israeli government issues building tenders for new settlements or for the expansion of existing ones.

 

  1. Since March 1999, the Israeli army has delivered more than 500 pre-fabricated houses to fifty settlements in the West Bank and Gaza.

     

  2. From October to December 1999, the Israeli government under Barak approved building plans for 2,757 new housing units to be built in 6 different West Bank settlements. It also approved ‘deposit’ plans for an additional 2,139 units to be added within the next year, and it approved the placement of 85 mobile homes in settlements that were “legalised” by the government in October.

     

  3. The Ministry of Housing under Barak issued tenders for 3,196 new units in the West Bank and the Gaza Strip.

     

  4. At the end of 1999 approximately 7,120 units were in various stages of construction in the West Bank and the Gaza Strip.

 

  1. So far, 195 settlements have been established in the West Bank, now home to 180,000 settlers. If one counts the Israelis living in the East Jerusalem, the total settler figure reaches 350,000.

     

  2. The Israeli settlement of Efrat, built on land confiscated from El Khader village, is expanding (under Barak’s administration) to include 1,024 new housing units, and the remainder of El Khader village (discussed above) is slated for this expansion.

 

  1. 61 settlements are slated for expansion; some to 10 times their original size.

  1. “…unlawful deportation or transfer.”

 

Article 49

“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive…The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

 

Article 47”Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”

 

Deportation and Forcible Transfer

Israel has forcibly transferred and deported large numbers of protected persons from the occupied territory. The vast majority of these population transfers date back decades and the problem is of such scale and gravity that the international community has repeatedly attempted to address means to secure Israel’s rectification of these ongoing breaches, to no avail. There has to date been no commitment to restore the transferred population, and Israel therefore remains in violation of Article 49 in this regard.

In this context, we reiterate the separate but related permanent responsibility of the United Nations towards all aspects of the question of Palestine, including the problem of Palestinian refugees, until it is resolved in conformity with relevant United Nations resolutions and in accordance with international legitimacy. In particular we emphasise the right of Palestinian refugees to return to their homes, as stipulated by General Assembly resolution 194 (III) of 11 December 1948. The provisions of resolution 194 and the other United Nations resolutions remain valid, and the United Nations must continue to protect the inalienable right of Palestinian refugees to return to their homes and must act as the guarantor of this right.

 

Deportation from and Annexation of Jerusalem

Though Article 49 makes an explicit reference to deportations of protected persons from occupied territory to the territory of the occupying power, or to that of any other country, if the article is interpreted dynamically within the spirit of the Convention, which puts the protection of protected persons at the centre of its concern, then deportations from one part of the occupied territory to another fall under the general prohibition of Article 49. Because humanitarian treaties must be interpreted in accordance with the purpose and objectives of their provisions, this article must be interpreted in a way that favours the interests of the general beneficiaries of the Geneva Conventions, that is, the civilian population. In the case of Occupied East Jerusalem, the protective objectives of the relevant provisions, which safeguard the rights of protected persons, clearly apply to Israel’s expulsion of Jerusalemites from their city of residence.

Since occupying East Jerusalem, Israel has deported thousands of Palestinian Jerusalemites from the city of their birth. In October 1999 the Israeli Ministry of Interior discontinued its “centre of life” policy, which had served to intensify the campaign to revoke the residency rights of Jerusalemite Palestinians since 1995. The adoption of a new standard – the “appropriate connection” test – equally discriminates against Palestinian residents of Jerusalem, however, by forcing them to prove their right to reside in Jerusalem. This new standard is, in essence, no less onerous than the previous policy, which clearly aimed to ‘cleanse’ the city of its Palestinian population.

East Jerusalem was formally annexed by Israel in June 1967 with the adoption by the Knesset of Amendment no 11 to the Law Administration Ordinance Law, Amendment no 6 of the Municipalities Ordinance Law, and The Protection of the Holy Places Law. The adoption of these laws established the broad legal framework for the extension of Israeli jurisdiction and administration to East Jerusalem. In 1980, the Knesset adopted the Basic Law: Jerusalem, which reaffirmed Israel’s annexation of the eastern districts of the city. The Basic Law stated: “Jerusalem complete and united is the capital of Israel. Jerusalem is the seat of the President of the State, the Knesset, the Government and the Supreme Court.”

In order to secure its annexation, the Israeli authorities have pursued a number of measures aimed at transferring privately held property, mostly land, from Palestinian to Jewish ownership (see section on land above for the relevant clauses of the Fourth Geneva Convention). For this purpose, successive Israeli governing administrations have made use of the 1943 Lands Ordinance (Acquisition for Public Purposes), which allows for the expropriation of private land if a “public purpose” exists. Such public purposes are to be designated by the Finance Minister.

Most of the land that has been expropriated has been used for the construction of more than 13 settlements within the Jerusalem municipal boundaries, some housing as many as 30,000 people each. Alongside the establishment of settlements has been an intense campaign aimed at encouraging Jewish Israelis to move to Occupied East Jerusalem.

At present, Israel continues to systematically violate the Conventions. Israel’s current Prime Minister, Ehud Barak, has repeatedly asserted that Jerusalem will remain united and under Israel’s “sovereignty” and has pursued actions in keeping with his rhetoric. Chronicled below are a number of measures pursued by the Israeli authorities on a continuous basis in East Jerusalem:

 

  1. Continuing construction on a settlement in the overwhelmingly Palestinian neighbourhood of Ras Al Amoud. The settlement will be called “Ma’aleh Hazeitim,” and will consist of 132 dwelling units.

     

  2. Publicly stated intention of the Israeli-controlled Jerusalem Municipality to build 200 dwelling units for Jews in the portion of Abu Dis that is within the municipal boundaries.

     

  3. Continuing rapid construction of the settlement of Har Homa on Jabal Abu Ghneim to house approximately 30,000 Jews.

     

  4. Establishment of a road network to connect all surrounding settlements to Jerusalem and to each other, thus isolating the Palestinian neighbourhoods.

     

  5. Barak government approval of the construction of 500 new dwelling units in the settlement of Gilo and 3,000 units in Pisgat Ze’ev.

     

  6. Continuing construction on the Eastern Gate settlement, intended to cover an area of 2,500 dunams on land from Issawiya, Anata and Shufat. Plans are also underway to establish a railway station and an industrial area in the settlement.

 

Forcible Transfer of Palestinian Prisoners

In violation of Article 49, Israel forcibly transferred more than 2000 Palestinian prisoners from jails in the occupied Palestinian territory to prisons within Israel. More than 1500 remain in Israeli prisons.

 

The prohibition of such transfer is reaffirmed in Article 76, which provides:

“Protected accused persons … shall be detained in the occupied country, and if convicted shall serve their sentences therein.”

Not only did these transfers violate the provisions of the Convention, they also jeopardised the prisoners’ well-being, rendering family visits, particularly for those prisoners from the Gaza Strip, very difficult, and in some cases impossible. The prisoners are geographically distanced from their families, many of whom are of limited means. Furthermore, under the pretext of security measures, family members are periodically denied the necessary permits to visit prisoners in Israeli jails.

Israel’s practices regarding Palestinian prisoners held in Israeli jails involve a number of other breaches of the Convention, including the following:

Accommodation and Confinement Conditions

Prison conditions for Palestinian and Arab prisoners in Israeli jails are substandard, unhealthy and crowded. They certainly violate the requirements of Article 76 of the Convention, which provides, inter alia, that;

 

“Protected persons … shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health…

 

They shall receive the medical attention required by their state of health.”

Palestinian prisoners in Israeli jails are still deprived such basic facilities as an education hall, a dining room, and places for practicing religious services. Such facilities are provided for the Common Law Israeli prisoners. Furthermore, Palestinian detainees are often placed under solitary confinement.

Palestinian prisoners in Israeli jails are subjected to severe shortages in both qualified medical staff and medical care. The Israeli General Prisons Service neither provides special food requirements nor specialised doctors for prisoners who need such care. In many cases, as a result of shortage and neglect, the condition of prisoners requiring medical attention deteriorates, as they are forced to wait weeks and months for the care they require. In some cases the prisoner’s condition has deteriorated to the point of death. These are deaths which were preventable had adequate medical care been available. The files of the ICRC bear impartial witness that this is the case.

Furthermore the three meals provided daily to the prisoners are poor in quantity and in quality, which further jeopardises the prisoners’ health, and contributes to deterioration in the case of prisoners who are unwell.

Fair Trial

Article 71 of the Convention provides that;

“No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.”

This Article introduces into the Convention a fundamental notion of justice, and the provisions of the Article itself do not purport to set out the complete requirements for a “regular trial”. The importance of a fair trial is reiterated in the Convention in Article 3, which prohibits “the passing of sentences … without previous judgement pronounced by a regularly constituted court, affording al the judicial guarantees which are recognised as indispensable by civilised peoples.”

Furthermore, Article 147 includes amongst grave breaches wilfully depriving a protected person of “the rights of fair and regular trial prescribed in the present Convention” (see above).

Legal Counsel

Article 72 of the Convention provides that;

“Accused persons … shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.”

The ability of the prisoners to exercise their right to legal counsel is severely limited in several ways. Firstly, since 8 April 1996, lawyers from the PA areas have been prohibited from visiting Palestinian prisoners in Israeli jails. Secondly, even where prisoners are able to obtain non-Palestinian legal counsel, the conditions of the lawyer-client meeting are neither free, nor private.

In this regard we refer to the recent case of Abu Oukel, mentioned above.

 

  1. “Collective penalities…”

Article 33

“No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”

 

Closure

Israel has maintained a closure over the occupied Palestinian territory. This constitutes a form of collective penalty or punishment against protected persons who have committed no offence, in violation of the Convention. Closures were systematically imposed from 1993, and have been used since with varying degrees of intensity. Along with periodic absolute closures, (sometimes called blockades, applied in violation of other provisions of humanitarian law), Israel has imposed a permanent partial closure on the Palestinian territory, preventing free movement of Palestinians to work, reunite with family members, seek medical attention, or to study, or to obtain access to the holy sites in Jerusalem. Furthermore, Israel has imposed restrictions on all commercial transactions and trade between the Gaza Strip and the West Bank, and between the territory and abroad.

Closures under Barak

Comprehensive closures:

  1. On 9 September 1999, Israel imposed a comprehensive closure until 13 September 1999.

     

  2. On 18 September 1999, Israel imposed a comprehensive closure to 20 September 1999.

     

  3. From 12.00am 19 September until 12.00pm 20 September 1999, all flights in and out of Gaza International Airport were prevented, and all land entrances, including the Rafah border crossing, were closed.

    Partial closure

     

  4. From 1 March 2000, the Israeli authorities cancelled the previously used “convoy” system for Palestinian commercial vehicles passing through Erez checkpoint. Under the old system Palestinian trucks, after extensive searching, had been able to pass into Israel in a convoy with Israeli military escort. More than 450 Gazan vehicles operated under this system, with more than 150 trucks using it daily. Under the new system, these trucks are obliged to go to Karni checkpoint, where they are not able to pass into Israel, but have to unload their cargo and have it reloaded into Israeli trucks. Palestinian industry officials estimated that the new restrictions would increase transportation costs by 100-110%.

     

  5. Movement of all Palestinians from the territory into Israel is controlled by a system of magnetic cards and permits. Permits are also required for use of the “safe passage” between the Gaza Strip and the West Bank. Furthermore, all non-resident Palestinians require a permit to enter Jerusalem.

     

  6. Students from Gaza have been refused permits to study in the West Bank because their father, or other family member, is considered a “security threat” by the Israeli authorities.

     

  7. Between the opening of the “safe passage”, on 25 October 1999, and the close of 1999, Israel refused the applications of 5,155 Palestinians to use the passage.

PART II – LEGAL PETITION

It has been one year since the High Contracting Parties met in Geneva under the auspices of the UN, through the General Assembly’s 10th Emergency Special Session resolutions.

In calling the Tenth emergency special session, the General Assembly believed that the UN Security Council was required and failed to take action under the UN Charter to respond to a threat to peace and security. The authority of the General Assembly to do this arises from the Uniting for Peace resolution. In this context, the General Assembly resolutions reflect a gravity of the humanitarian situation in the occupied Palestinian territory, arising from Israel’s violations of humanitarian law. It was in this context that the High Contracting Parties agreed to meet.

At the meeting on 15 July 1999, High Contracting Parties resolved:

After consultations among High Contracting Parties, the Conference, as recommended by UN GA Resolution ES-10/6 in its tenth Emergency Special Session,(1) convened in Geneva on 15 July 1999.

The participating High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem. Furthermore, they reiterated the need for full respect for the provisions of the said Convention in that Territory.

Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.

(1) Operative Paragraph 6: “Reiterates its recommendation that the High Contracting Parties to the Fourth Geneva Convention convene a conference on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, and to ensure respect thereof in accordance with common Article 1, and further recommends that the High Contracting Parties convene the said conference on 15 July 1999 at the United Nations Office at Geneva.”

This clearly reflects the intention of the High Contracting Parties to recognise and implement their ongoing obligations under Article 1 of the Fourth Geneva Convention. Article 1 calls upon all High Contracting Parties “to respect and ensure respect” of the Convention. This continuing obligation constituted the basis for the intention of the High Contracting Parties to reconvene and agree upon further enforcement measures to bring about Israel’s compliance with its obligations under international humanitarian law. Thus, the obligations of all High Contracting Parties under Article 1 can only be considered discharged once Israel has fully complied with its obligations under the Convention.

As the obligation under Article 1 has not been fulfilled and previous enforcement actions pursuant to the Convention have failed to bring about Israel’s compliance, it is crucial to stress and clarify the meaning and objective of the Article 1 obligation. The following sections illustrate that the obligation under Article 1 is firmly rooted within public international law and is supported by various principles of international law. They also address the ongoing obligations of the High Contracting Parties with regard to the Israeli occupation of the Palestinian territory.

The Obligation Under Article 1 and Principles of International Law

All High Contracting Parties are bound by the obligation under Article 1 to take measures to ensure that other states comply with the Convention in its entirety. Two main concepts within public international law substantiate this argument. First, the concept of state responsibility calls upon the High Contracting Parties to take on the obligation under Article 1. Second, the Fourth Geneva Convention constitutes a multilateral treaty, many, if not all, of whose provisions have now entered into the body of customary international law, thereby creating binding obligations on all States.

As a fundamental principle of international law, the concept of state responsibility clearly emphasises that the obligation under Article 1 be carried out collectively by all High Contracting Parties and pursued vigorously and on a continuous basis. State responsibility applies whenever one state commits an internationally wrongful act against another state or states. Such wrongful acts include the violation of any provisions of international law. According to the Draft Articles of State Responsibility, Article 40, paragraph ii, an “injured state” is any state party to a multilateral treaty or bound to any rule of customary international law that has been violated by the offending state. This clearly applies to Israeli violations of and disrespect for the Fourth Geneva Convention. Since all state parties to the Convention are considered “injured states,” there exists an even greater responsibility on the High Contracting Parties to respect Article 1 and ensure that Israel fully abides by the terms of the Convention.

To illustrate the objective and the proper meaning of Article 1 with regards to the obligation of the High Contracting Parties to respect the Convention, reference can be made to the Draft Convention on State Responsibility. According to Article 53 of the Draft Convention on State Responsibility, all states have obligations when a state commits an international crime. These obligations include: 1) lack of recognition as lawful the situation created by the crime; and 2) non-provision of aid or assistance to the state that has committed the crime, which will maintain the situation so created. States, moreover, have an obligation to cooperate with other states in carrying out these obligations. The process initiated by last year’s meeting of High Contracting Parties to the Fourth Geneva Convention clearly established a mechanism with which States can fulfil their obligations and ensure Israeli compliance.

The inherent logic of any treaty is that parties to the treaty intend to create legal relations between themselves through their agreement. It was for this purpose that the High Contracting Parties signed and ratified the Fourth Geneva Convention. The fact that the provision that calls on High Contracting Parties “to respect and ensure respect of the Convention” appears at the beginning of the Convention illustrates the importance of its purpose and the common vision of contracting states. Failure to implement and fulfil the obligation under Article 1 not only constitutes a breach of the obligation, but also amounts to a recognition and acceptance of Israel’s disrespect for international humanitarian law.

Present Obligations on the High Contracting Parties

The Article 1 obligation to ensure respect clearly involves a number of measures that must be carried out on an ongoing basis and without undermining the validity of the obligation:

  1.  
    1. At the meeting on 15 July 1999, the High Contracting Parties came to an understanding regarding an initial measure towards fulfilling this obligation. This could be considered to be the most basic of the measures available, that is to monitor, assess and communicate violations of the Fourth Geneva Convention by the State of Israel in the Occupied Territories. There is no doubt that the results of such monitoring confirm that Israel is violating the Fourth Geneva Convention. It is of high importance that this basic step of enforcement is not neglected and is carried out by the High Contracting Parties with an even higher degree of precision and diligence. However, as is discussed further below, the failure of this measure to ensure Israel’s respect of the Convention requires the High Contracting Parties to investigate and initiate further, and more strenuous measures to this end.

       

    2. It is essential that High Contracting Parties do not contribute to violations of the Fourth Geneva Convention. Under Article 1, High Contracting Parties are obliged to respect the Convention. States cannot respect the Convention, let alone ensure respect, while facilitating violations. Ceasing support for violations is an obligation to which states have agreed by becoming State Parties to the Convention. It is the very purpose of the obligation under Article 1 that all High Contracting Parties neither recognise the legality of the occupation nor assist the State of Israel in violating the Convention. Assistance to a state violating international humanitarian law is itself an unlawful act. Thus, providing military aid or funding settlement activities in the occupied Palestinian territory puts the responsible High Contracting Party in violation of international humanitarian law.

       

    3. High Contracting Parties have a duty under Articles 146 and 147 of the Fourth Geneva Convention to pursue, capture and try those suspected of grave breaches, as outlined in Article 147. For this purpose, all High Contracting Parties are obliged “to undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following article.” Such enforcement measures have gained more weight and importance in the context of states’ acceptance of the International Criminal Court (ICC). The ICC will have jurisdiction over war crimes, inter alia, which include the wide range of violations being committed by the State of Israel in the Occupied Palestinian Territories. Under the Statute of the International Criminal Court, grave and serious breaches under the Fourth Geneva Convention are elevated to the category of “war crimes.” Even though the ICC has not yet come into existence, international consensus has been formed and is proof enough that Israeli violations concern the international community as a whole and strike at the very conscience of humanity.

 

Reconvening the Conference

Although the statement of High Contracting Parties refers to the UN General Assembly resolution, the meeting was not called arising from obligations under the UN General Assembly resolutions. The resolution is a non-binding recommendation to State Parties arising because of the Security Council’s failure to respond to a threat to international peace and security. The convening of the meeting was in accordance with the Article 1 obligation and the recognition of the clear need, reflected in the UN General Assembly resolution, to respond to the appalling humanitarian situation in the occupied Palestinian territory. Nonetheless, the resolution has significant persuasive value and High Contracting Parties acted in accordance with this recommendation by convening the 15th July conference. In adopting the mechanism of a conference, the High Contracting Parties accepted, and expressed, their duty to reconvene without intervention of the UN General Assembly.

One year after the conference, the humanitarian situation has deteriorated. Article 147 grave breaches are being perpetrated in the form of killings, ill treatment and torture, deportation of Jerusalem residents, extensive destruction of property, such as home demolitions. Violations of Articles 47 and 49 include land confiscation and Israeli settlements. The transfer of Palestinian prisoners in violation of Article 49 has not been rectified, and the conditions of detention of Palestinian prisoners in Israeli jails violate the provisions of Article 76. Part I testifies to these violations. As the Convention operates without limitations in time or liability, these violations are additional to the pattern of breaches throughout Israel’s occupation. These remain breaches of the Convention until respect is restored through adherence to Article 1, Article 146 (on prosecution), or the Hague Convention (on compensation).

An “improved atmosphere” must produce tangible benefits in the field. The Article 1 obligation does not allow for an indefinite period of anticipation for respect of the Convention. Israel has had ample opportunity to conform to the Convention. Israel, despite its numerous concentric obligations, including human rights treaties, general international law and the Israeli-Palestinian agreements, has determinedly pursued policies that violate the Convention. It now turns to the High Contracting Parties to address these abuses and to seek to secure Israel’s respect.

Although the Convention favours peace over conflict, it is not compromised by any possible peace agreement. Any agreement that falls below the standards of the Convention is considered null (Article 47). High Contracting Parties thus cannot avoid their Article 1 responsibilities under the Convention merely because of the existence of a peace process, particularly as violations persist despite the period of notice. The improvements in negotiations cannot be shown to have contributed to respect of the Convention and cannot be a consideration unless this can be shown. The only negotiations or consultations that can occur must be towards logistical arrangements restoring respect or otherwise associated with the Article 1 obligation.

As there is a continuing pattern of violations, the conference of High Contracting Parties should reconvene at the earliest opportunity. If the conference fails to reconvene, then responsibility to ensure respect reverts to the High Contracting Parties individually. Failure to reconvene will result in the loss of a valuable mechanism based on consensus and mutual concern for ensuring Israel’s respect for the Convention, as demanded by Article 1.

Measures for Ensuring Respect

  1. Progressive levels of enforcement action

    The obligation to ensure respect is progressive. If, within a specified period of time, one set of measures to secure respect for the Convention fails, the High Contracting Parties must take further and more strenuous steps. A reconvened conference must thus consider measures beyond those that should already be being taken, namely, measures under Article 146, not contributing to violations, thereby ensuring the High Contracting Parties own respect, and low-level enforcement as envisaged by the conference when it adjourned.

    Measures of enforcement are widely recognised and utilised by states in their diplomatic and economic relations. A potentially effective enforcement mechanism would be to reduce cooperation with Israel, particularly that linked to violations of humanitarian law such as military and security cooperation. Such a mechanism, which would reduce Israel’s ability to violate humanitarian law, could take the form of refusal to allow Israeli companies to bid for military contracts or imposing conditions associated with the Convention and its violation on any Israeli bidder.

    A second, higher, level of enforcement would be to withdraw or place restrictions on cooperation, aid and investment, particularly where such relations are associated with breaches. Closely associated with this type of enforcement is the use of tariffs on trade, perhaps to offset injuries suffered arising from breaches of the Geneva Convention.

    A third level of enforcement would be to sever diplomatic relations and remove Israel’s privileges internationally, through prohibiting its representation on relevant intergovernmental organisations.

    The final level of enforcement would be the imposition of embargoes and other measures, short of force, designed to disrupt the domestic situation in Israel.

  2. Restrictions on enforcement action

Certain restrictions apply to enforcement action. Time limits must be set, meaning any enforcement measure cannot be held in place in perpetuity. Israel should be notified of the intention to implement a particular enforcement mechanism and there must be an opportunity for the High Contracting Parties to assess the success of the mechanism.

In addition and related to the condition of time, enforcement measures should only end when Israel demonstrates respect for the Convention as a whole, and does not simply cease one or more types of violation. Israel would have to notify the High Contracting Parties of its intention to respect the entire Fourth Geneva Convention and High Contracting Parties would need to monitor the situation to ensure Israel’s full compliance. Any renewal of violations must automatically reinitiate enforcement measures.

Any enforcement mechanism must be directed to the purpose intended. Thus, High Contracting Parties should not persist with measures that fail to ensure enforcement or that have already been tried and failed. Examples of such measures include those aimed at deterring violations rather than enforcing respect from the recalcitrant party. Measures such as the use of the “fact-finding mission” and the designation of a “protecting power” fail principally because they require the consent of the Occupying Power. Comparable (though not analogous) functions have been performed by the United Nations and the International Committee of the Red Cross and have failed to bring about Israel’s respect for the Convention. Such measures cannot be pursued in the absence of any definitive indication of success. As Israel refuses to recognise the de jure applicability of the Convention and intentionally violates the Convention by, among other things, authorising and providing immunity for grave breaches, the utility of these measures is limited.

 

Part III: CONCLUSION

The reconvened conference represents the next step to be taken in a process of enforcement, which must continue until Israel’s respects the Convention until the end of occupation. Individual states must take measures as set out here that respect and ensure respect of the Fourth Geneva Convention, including not contribution to violations and Article 146 prosecution. by toward securing Israel’s compliance with the Fourth Geneva Convention should continue until the conference reconvenes. But the worsening humanitarian situation in the occupied Palestinian territory obliges the High Contracting Parties to reconvene the conference and agree upon further, more strenuous, action.

The High Contracting Parties, in the spirit of Article 1 of the Convention, resolved to reconvene the conference in the event of worsening humanitarian conditions. The first half of this report has shown that the pattern of Israeli violations of the rights of the civilian Palestinian population, as protected by the Convention, has continued over the past year. The signatories to this petition, as protected persons, call on the High Contracting Parties to reconvene at their earliest opportunity and make preparations for implementing of the enforcement mechanisms leading to fulfilment of the Article 1 obligation.