The convention does not formally apply

0
43

Israel ratified the "Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War" and, under international law, is bound to apply its provisions. The convention deals with protecting civilians in time of war, with particular emphasis on the protection of civilians who are considered "enemy" nationals. The convention grants various protections to such enemy nationals including conditions of fair trial, conditions of detainment and visits by Red Cross representatives. Another part of the convention applies explicitly to civilians in "occupied enemy territory". Israel applies the provisions of the convention that relate to "enemy civilians" and little controversy has arisen in their application. The public debate relates to whether the West Bank and Gaza are "occupied enemy territory" for the purposes of the convention.

Classic international law defines occupied territory as the sovereign territory of a state that is under the military occupation of another state at a time when a state of war exists between them. International law forbids the occupying state from annexing the occupied territory, and requires the occupier to set up a military government in the territory. This military government is subject to the restrictions imposed by the laws of occupation of international law.

Since the demise of the Ottoman Empire, the West Bank and Gaza Strip have not been the sovereign territory of any state. Jordan acted after 1948 as sovereign in the territories of the West Bank, but Jordanian control ended in the 1967 Six-Day War. Jordan has since relinquished its claim to sovereignty. Egypt has never staked any claim to sovereignty in the Gaza Strip. A Palestinian state in the West Bank and Gaza has not yet been established, and its borders have not been determined.

In view of the uncertainty as to sovereignty in these territories, Israel’s position is that its administration could not be categorized as the occupation of the sovereign territory of another state and that the de jure applicability of the convention to the West Bank and Gaza "is doubtful".

Notwithstanding its formal position, Israel has undertaken to apply the "humanitarian provisions" of the convention. The phrase "humanitarian provisions" used by Israel is intended to make the statement that Israel would be applying those provisions whose object was the protection of the local population and would not be applying those provisions whose object was to protect the rights of a–non existing–sovereign state. In practice no such distinction has been made and the Israel Supreme Court enforces all the provisions of the Fourth Geneva Convention.

There is no Israeli legislation enforcing the convention. The convention is regarded as a basic text of international humanitarian law and has been referred to as reflecting international customary law; yet in practice no state has ever formally applied it to a given occupied territory. The closest to formal application has been Israel, which applies the "humanitarian provisions" of the convention to the West Bank and Gaza. Neither the US nor the UK has formally applied it to their administration of Iraq. Israeli courts regard customary international law as automatically part of Israeli law and hence enforceable. However due to the absence of state practice in applying the Convention, the courts reached the conclusion that the convention is not yet customary law and hence not enforceable. Notwithstanding this, the attorney general has consistently agreed that the courts examine acts of the Israel Military Administration in accordance with the rules set out in the convention, and the High Court of Justice routinely does so.

Even if Israel were to formally apply the convention there would still remain a fundamental difference as to its interpretation as regards the legality of Jewish settlements.

Article 49 of the convention prohibits an occupier from transferring "parts of its own civilian population into the territory it occupies". Many legal authorities interpret this as forbidding the establishment of Jewish settlements in the territories. Israel disputes this interpretation.

A further issue would be the application of the convention to East Jerusalem. Israel has applied its law to East Jerusalem and the Arab inhabitants are considered permanent residents of Israel. Needless to say there is no military administration there. The UN Security Council has however passed a resolution declaring that East Jerusalem is occupied territory and the convention applies.

Another issue is whether the convention applies to areas controlled by the Palestinian Authority (Areas A and the Gaza Strip). Here again Israel does not consider the convention relevant.

To sum up, there are legitimate doubts as to sovereignty in the West Bank and Gaza and whether provisions of the convention applying to occupied territory of an enemy state are applicable. The humanitarian provisions of the convention are enforced by the Israeli courts and formally applying the convention would not materially change the situation in this regard. Furthermore, fundamental differences of interpretation and application as regards settlements and East Jerusalem would remain even if Israel were to recognize the applicability of the convention.

The question of sovereignty, it is submitted, must be settled by establishing a border between Israel and a future Palestinian state and not by arguing over the provisions of the Fourth Geneva Convention.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

Comment moderation is enabled. Your comment may take some time to appear.