PCHR urges the Swiss Government to implement honestly UN authorization regarding the Conference of the High Contracting Parties to the Fourth Geneva Convention of 1949
4th June 1998
On June 5th, 1967 Israeli military forces attacked neighboring Arab countries of Egypt, Jordan, and Syria. The invading forces subsequently occupied the Gaza Strip, which was under Egyptian rule, the West Bank, including East Jerusalem which was under Jordinian control, the Sinai Peninsula, which is part of Egyptian territory, and the Golan Heights of Syria. Since then the Israeli occupying forces have imposed their will on the people of these territories, denying them basic rights and freedoms. Israel has also annexed East Jerusalem and Syria’s Golan Heights, declaring both to be Israeli territory and subject to Israeli rule. In 1979, the Egyptian government and the Israeli government signed the Camp David Accords, which ended the Israeli occupation of the Sinai Peninsula, returned control to Egypt. Complete authority over the Sinai was returned to Egypt in 1982. The other territories, however, remain occupied by Israeli military forces.
Soon after it occupied the West Bank and the Gaza Strip the Israeli occupying forces imposed military, legal, and administrative control over them through orders and regulations issued by the Israeli military commanders of the regions. Since that time, the international community, consisting of both governments and international organizations, especially the United Nations and the International Committee of the Red Cross (ICRC), has regarded the territories of Palestine as territories subjected to occupation by the military of a belligerent foreign power. The IVth Geneva Convention of 1949, relative to the protection of civilian persons in times of war, is therefore applicable de jure, legally obliging the Israeli occupying forces to apply its provisions and provide for the protection of civilian persons.
Immediately after occupying the West Bank and the Gaza Strip, the Israeli military commanders of each region issued similar pronouncements accepting the applicability of the IVth Geneva Convention to the two territories. Three months later, however, the two commanders modified their positions to reflect a rejection of the applicability of the convention to the regions. Since that time the Israel government has refused to recognize Palestinian territories as occupied territories, or Israel as a belligerent occupying power, consequently denying the applicability of the IVth Geneva Convention. Israeli attempts at justifying this position have been inadequate, especially the claim that the convention does not apply because the territories were seized in a defensive war. Yet, as stated in article one of the convention, the nature of the conflict is irrelevant. Moreover, as stated in article two, it should apply in all total or partial states of occupation regardless of how, where, and when the occupation occurred. Thus Israeli actions violate the rules of international law, especially the provisions of the United Nations Charter, by assuming that there is a difference between a defensive and an offensive war. The Israeli claim that it seized control of the territories from governments that were not granted legitimate authority, thereby nullifying the applicability of the IVth Geneva Convention, is likewise invalid. The convention applies in all circumstances and does not deal with the nature of governments prior to occupation. Israeli claims, therefore, do not stand up to legal scrutiny. It is not surprising then that Israel is alone in rejecting the applicability of the IVth Geneva Convention to the occupied territories.
The Israeli government, as well as the Israeli High Court, the highest judicial body in Israel, claimed that while the convention is not applicable de jure, the Israeli government will apply the humanitarian aspects of the convention de facto. It is important to note, however, that the application of the humanitarian aspects of the agreement, as defined by the Israeli government and the High Court, resulted in the legalization of torture against Palestinians (which caused numerous deaths), land confiscation, and Jewish settlements on Palestinian lands. It also led to the willful killing of Palestinians, house demolitions, the exile of vast numbers of Palestinians from their homes, and other forms of oppression. This raises the question of which humanitarian aspects the Israeli government is talking about, assuming that indeed there exists within the convention, a pillar of international law, both humanitarian and non-humanitarian provisions.
Palestinians Demands from the High Contracting Parties
As a result of Israel’s refusal to apply de jure the provisions of the convention and Israel’s systematic violations, Palestinians have demanded that the High Contracting Parties fulfill their legal obligations under the convention. Article one states, “The High Contracting Parties undertake to respect and to ensure respect for the present convention in all circumstances.” The HCP’s, therefore, are not only obliged to respect the convention, but must also ensure that it is respected by any other contracting party who might attempt to violate its provisions. Consequently, Palestinian demands focused on insuring the applicability of the convention to the occupied territories of Palestine and providing for the protection of Palestinian persons as mandated by the convention.
Political Developments and the legal Status of the Palestinian Territories
On the 13th of September 1993 the PLO, on behalf of the Palestinian people, and the Israeli government signed the Declaration of Principles (The Oslo Accord), which was followed by a number of other agreements. The Cairo Agreement, which was signed on the 4th of May 1994, established the Palestinian National Authority (PNA) to exercise the duties of government in the West Bank and The Gaza Strip. The agreement, however, denied the PNA authority over security and foreign relations for a period of five years from the signing of the agreement. During that time, the agreement stipulated, Israel’s occupying forces would continue to exercise control in these matters. New political developments, particularly the signing of the aforementioned agreement, have opened the door once again for discussion of the legal status of the occupied Palestinian territories and the applicability of the IVth Geneva Convention to those territories. Several key points to this discussion follow.
First, the IVth Geneva Convention in principle does not oppose the right of High Contracting Parties to conclude an agreement with an occupying power unless, as stated in article seven, the agreement adversely affects the situation of protected persons as defined by the convention, or restricts the rights it confers upon them. The convention goes on to stress this legal point by refusing to sanction under any circumstances the deprivation of protected persons who exist in an occupied territory of the benefits of the convention as a result of any concluded agreement between the authorities of the occupied territory and the occupying power. Article 47 states: “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.” Undoubtedly, the PLO, from a legal point of view, serves as the representative body of the occupied territories (their sole representative) and consequently has the right to conclude agreements (The Oslo Accord, for example) with the occupying power (the Israeli government). The previously cited articles support this right so long as the concluded agreement does not encompass any provision that could undermine or prejudice the rights granted to Palestinian cior violate any other provisions of the convention. Provisions in the concluded agreement that do contain such violations are rendered illegitimate and illegal. Israel, as a belligerent occupying power, is obliged to fulfill its obligations under the convention without any consideration for any concluded agreements. In applying the provisions of the convention it is clear that there are a number of provisions of the concluded agreements that violate the 4th Geneva Convention. These include: the expansion of Jewish settlements, which are banned under article 49 of the Convention, the continuous control over vast areas of Palestinian territory by Israeli occupying forces, and Israel’s continuous control over security issues. Further significant is the preservation of Israeli military orders, which overstep the boundaries of legitimate authority granted to an occupying power as stated in article 64 of the IVth Geneva Convention, and the Israeli insistence that East Jerusalem belongs to Israel before final status negotiations have even begun. These facts and practices on the ground make it clear that the Israeli occupation continues to exist, which means that the convention continues to be de jure applicable.
Second, according to the concluded agreements between the PLO and the government of Israel, the Israeli government will preserve and perform the authorities of government, especially in those areas that are not yet under Palestinian jurisdiction. In this regard Israel will continue to be a belligerent occupying power obliged to apply de jure the provisions of the IVth Geneva Convention, at least in those areas over which it still has jurisdiction and through which it performs the functions of government. In this role, Israel continues to have a direct impact on the economic,
social, legal, health, and educational aspects of Palestinian civilian life. Article 6 of the IVth Geneva Convention states that the occupying power is obliged by the core of the provisions “to the extent that such power exercises the functions of government in such territory.”
The invitation of the United Nations General Assembly (UN General Assembly) to the High Contracting Parties and the Following Developments
In a significant development and a late response to the Palestinian demands the UN General Assembly adopted resolutions RES-10/2,RES-10/3,RES10/4,and RES10/5, which once again defined Israel as a belligerent occupying power gravely violating the provisions of the IVth Geneva Convention through its legal and administrative practices and measures. They also stated that the IVth Geneva Convention is de jure applicable to the occupied Palestinian territories, including East Jerusalem and the rest of the Arab territories under Israeli military occupation. As a result of Israel’s continuous refusal to fulfill its legal obligations under the convention, the UN General Assembly has asked the HCP’s to the IVth Geneva Convention to convene a conference regarding the applicability of the Convention to the occupied Palestinian territories, including Jerusalem. This conference would also aim to ensure that the HCP’s respect their obligations under article one of the convention. The UN General Assembly also asked the government of Switzerland, as a depository of the convention, to take the necessary steps to convene a meeting of experts to determine how best to follow the recommendations stated in resolution RES-10/4. This meeting should occur as soon as possible, and no later than the end of February 1998. The UN General Assembly also has asked the Swiss government to invite the PLO to participate in the conference and any preliminary steps related to the conference. The Swiss government contacted the HCP’s and the PLO, but failed to convene the meeting because, as claimed by the Swiss government, consensus was not reached by the HCP,s. It was very clear that both the Israeli and United States governments wanted to avoid such a conference at all costs, claiming that the conference would prejudice the peace process between the PLO and the government of Israel. The government of Switzerland supported this stance, and avoided implementing the resolution under the force of American and Israeli pressure These contacts with the concerned parties resulted in the following events:
First, on the 29th of April 1998, a meeting took place in Bern between representatives of the Swiss government and the Palestinian authority for the purpose of exchanging views on a Swiss proposal to convene a quadrilateral meeting. This meeting, which would simultaneously be a meeting of experts, would include the PLO, the Israeli government, the Swiss government (as the depository of the convention), and the ICRC. Representatives of the PNA have affirmed that any such meeting should deal with the de jure applicability of the IVth Geneva Convention.
Second, on the 27th of May 1998 the Swiss government, through its representative office in Ramallah, sent to the PNA a draft of a proposal, titled “Diplomatic Note,” which outlined Swiss plans to implement the relevant resolutions. This proposal suggested a private, quadrilateral meeting (to be held between the 9th and 11th of June 1998) which would be aimed at “examining measures and mechanisms which contribute to the effective application of the IVth Geneva Convention in the Occupied Palestinian Territories.” The Swiss government considers its proposal for this meeting to be an appropriate step given its mandate from the UN General Assembly. In the next phase, states the proposal, a meeting of experts “should proceed to an analysis of the general problems concerning the IVth Geneva Convention and seek possible remedies which would contribute to the respect for the convention (in general, and in particular in occupied territories).” Clearly, the meeting is not intended to specifically address the applicability of the IVth Geneva Convention to the Palestinian Occupied Territories. The discussions would be informal and reflected in a report by the chairman.
Third, the PNA responded to that proposal, which contained prejudices in its formulation, in its treatment of the resolutions, and in its planned agenda. The Swiss government responded to the PNA’s comments by modifying some of the points within the proposal. The Swiss government, however, refused to acknowledge that the meetings should deal with the applicability of the IVth Geneva Convention to the Occupied Territories of Palestine.
The Swiss plan contradicts the letter and spirit of the relevant UN resolutions. The Swiss government is authorized to request that the HCP’s convene, however it is apparently no longer neutral and no longer committed to performing its legal duties. Its current actions seem guided by pressure from the United States and Israel, who have encouraged it to pressure the PNA to accept its proposals or else accept responsibility for the failure of the HCP’s to convene.
The Palestinian Center for Human Rights (PCHR) asserts the following points:
First, the UN General Assembly resolution calling for the HCP’s to convene in order to fulfill their obligations to apply de jure the convention to the Palestinian occupied territories is of utmost importance. Local and international human rights organizations have for many years asked the HCP’S to convene and ensure the applicability of the IVth Geneva Convention. A conference of the HCP’S would focus attention on Israel’s human rights violations and reaffirm the legal status of the Palestinian occupied territories as such. This designation must not cease until the Palestinian people achieve their legitimate rights, especially the right of self-determination.
Second, recent Swiss efforts have fallen well short of its UN General Assembly mandate. They contradict in letter and spirit the resolutions of the UN General
Assembly, which called for a conference focusing on the obligations of the HCP’s to the Palestinian Occupied Territories, not a quadrilateral meeting that would divert attention from that focus. The issue raised is not a political one, but a legal one that demands that the HCP’s, ithe Swiss government, fulfill their obligations under international law. The UN resolution has authorized the Swiss government to take preliminary steps to ensure a conference of the HCP’s. This resolution does not give it free reign to convene meetings which could prejudice participants in the conference proposed by the resolution. The drafters of the UN resolution, perhaps aware of the potential for the misuse of the Swiss mandate, mentioned only the possibility of convening a meeting of experts. Should the drafters have anticipated the need for other meetings, it is likely that they would have alluded to such meetings in the text of the resolution.
Third, the purpose of the quadrilateral meeting has been defined in the Swiss proposal as the examination of the application of the convention rather than the de jure applicability of the convention to the Occupied Territories of Palestine. There is a big difference between the two approaches. As mentioned earlier, Israel claims that it applies de facto the humanitarian aspects of the convention, which means that the examination will likely concentrate on how to improve the implementation of these aspects. This narrow focus, however, gave rise in the past to human rights violations (many of which we have mentioned) and grave breeches of the convention. This narrow focus also fails to recognize the applicability of the whole convention, which states clearly that the Palestinian territories are indeed occupied territories that should be recognized as such by the Israeli government. A broader focus that recognizes the applicability of the entire IVth Geneva Convention would allow examination to be concentrated on the mechanisms that provide protection for Palestinian civilians and other provisions that ensure respect for human rights.
Fourth, the potential danger of the quadrilateral meeting, and similar meetings, is that they would produce agreements that would prejudice the rules of international law. International law is the fundamental reference, and should be kept as the first and last reference in any case regarding the Palestinian Occupied Territories, especially now that we are approaching the final status negotiations between the PLO and the government of Israel. International law, which should be the reference point for the signed peace agreement between the two parties, has been ignored, resulting in a number of problems that risk the realization of Palestinian rights. Thus it is critical that international law be preserved by all parties. No concessions should be made in regard to legal issues under any circumstances.
PCHR also affirms the following:
First, PCHR reiterates its demand for an immediate conference of the HCP’S of the IVth Geneva Convention. This conference is essential for the HCP’s to fulfill their obligations to insuring the applicability of the convention to the Occupied Palestinian Territories. It is also essential to insuring that the Israeli occupying power respects the provisions of the convention. PCHR reaffirms the UN General Assembly resolutions and asks for their immediate enforcement in letter and spirit.
Second, any meeting that does not conform to the mandate authorized by the UN is an attempt to undermine the legitimacy of the fair demands of the Palestinian people, especially the applicability of the IVth Geneva Convention and the protection of Palestinian civilians in the occupied territories. The proposed quadrilateral meeting presents many potential dangers. It is another step towards deleting legal references and the rule of international law, which is the basic guarantee of the rights of the Palestinian people and universal respect for human rights.
Third, the continuation of the status quo without the conference of the HCP’s is preferred to a meeting of the kind proposed by the Swiss government. Such a meeting will undermine the Palestinian effort to convene a meeting of the HCP’s. In this regard we demand that the Swiss government prepare for the HCP’s to convene as stated in the UN resolution, and not prepare and participate in a meeting that is clearly a product of American and Israeli pressure. The Swiss government, as a depository of the convention, should honestly and fairly fulfill the mandate granted it by the UN.
Fourth, in light of these developments, PCHR calls for PLO and the PNA to continue pressing for the de jure applicability of the IVth Geneva Convention to the Occupied Territories, the recognition of the Palestinian territories as occupied territories, and the recognition of Israel as the belligerent occupying power.
Fifth, the conference of the HCP’s should occur in spite of Israeli and American refusals because each party of the HCP’s is legally obliged to ensure respect for the convention. The obligations under the IVth Geneva Convention are legal obligations, and like the conference of the HCP’s, must not be subject to political maneuvering. The law must be applied, states must respect their commitments. The conference should focus specifically on the Occupied Territories of Palestine, not on occupied territories in general.
