Tag Archives: Fourth Geneva Convention

Prolonged Occupation or Illegal Occupant?

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Michael Lynk’s commentary was first published on May 16, 2018 on EJIL: Talk! …. the Blog of the European Journal of International Law.  He raises a novel argument — that the international legal community should consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal line, resulting in an illegal occupation. Professor Lynk posits a 4-part test to determine the answer. His commentary is reprinted below in full.*

Michael Lynk is an associate professor at the Faculty of Law, Western University, London, Ontario, Canada. He teaches labour law, human rights law and constitutional law. In March 2016, the United Nations Human Rights Council appointed him as Special Rapporteur for the situation of human rights in the Palestinian Territory occupied since 1967

“An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. BenvenistiO. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation(2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities.

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United NationsB’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalemand Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.”

*     I didn’t ask permission to republish this commentary, preferring to ask forgiveness later if I’ve overstepped.  The original commentary can be accessed here.

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The Great Return March

UN_Palestine_Partition_Versions_1947

Many Americans know that the United Nations called for the creation of the State of Israel following a U.N. vote A/Res/181(II) in November 1947.

Some Americans may be aware that the actual founding of the State of Israel occurred on May 14, 1948 in Tel Aviv when David Ben Gurion stood up before the Jewish People’s Council gathered at the Tel Aviv Museum and read a declaration. 

Ben Gurion

 

I bet few Americans have a clue that under international law, and Resolution A/Res//194 (III) (adopted by the United Nations General Assembly on December 11, 1948)  the Palestinian refugees have the right to return to their properties, homes and businesses in what is present-day Israel.

Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;

Haaretz columnist Uri Avnery claims the Palestinian right of return is not such a complicated issue, (Oct. 18, 2017 article) but nothing strikes dread into the hearts of Israeli leaders (and perhaps many Israelis) more than the thought of millions of Palestinians pouring across Israel’s undefined borders. The demographics challenge, they fear, would be insurmountable for their Jewish state. Israel now wants Trump to remove the ‘right of return’ from the negotiating table. (January 2018 article).

The Palestinians are planning to put the ‘right of return’ front and center — on every dining room table in Israel, every board room in executive suites, and in the heart of the Knesset. The Great March

Beginning Friday, March 30, Palestinian refugees will begin 46 days of non-violent action entitled “The Great Return March”.

 

The “Great Return march” is a popular Palestinian peaceful march, where the participants (men, women, children, elders, families) will start marching from the Palestinian communities in the occupied territories (Gaza Strip, the West Bank and Jerusalem) and from (Jordan, Lebanon, Syria and Egypt) to their homes from which they were forcibly displaced in 1948.

From the Coordination Committee:

The organizers of this march and their participants will never use any means of violence, and will only be limited to a peaceful march in accordance with the truce plan, bearing in mind that this march will be totally peaceful and doesn’t involve harming or threatening any country or using any means of violence.

It should be noted that the implementation of the Great Return march will be carried out peacefully in accordance with the rules of international law and in line with the UN resolutions on the return of the Palestinian refugees and other relevant international resolutions on the Palestinian issue.

In other words, the march will for the first time, employ the popular dimension to effectively compel the Israeli occupation state to the international resolutions and recommendations that it denies and refuses to implement, which over the past decades has constituted a clear threat to international peace and security.

Great_March_of_Return_2016-

 From the 2016 Great March of Return.  VERSO

The Legal Basis for the Great March of Return:

The UN Resolution 194 of the third session, issued on 11 December 1948, constitutes the international legal basis for the great return march, especially that it clearly called for the return to be allowed as soon as possible to refugees wishing to return to their homes and live in peace with their neighbors, and compensation should be paid for the property of those who decide not to return to their homes, and for every missing or injured person … “as well as international laws, especially which organize the legal framework for refugee rights, and the universal human rights principles that obligate the international community (States – International Organizations ) to help refugees return to their land and ensure their human dignity.

Based on the foregoing, we inform you of the Palestinian refugees intention to realize the right to return to their homeland in a peaceful and legal manner, under the legitimacy of the United Nations and the international community and with a legal reference based on international humanitarian law, international human rights law and United Nations resolutions relevant to the Palestinian cause.

general_assembly_adopts_newresolutioninfocus

United Nations General Assembly

Call for Support and Assistance:

We expect the Israeli occupation forces to use excessive and lethal force against the unarmed participants in the great return march. To avoid casualties, and based on the rights granted to civilians in the occupied territories under the Universal Declaration of Human Rights and the Fourth Geneva Convention of 1949, which the occupation state signed and its Additional Protocol I of 1977, and under the Rome Statute establishing the International Criminal Court, which incorporated certain acts considered to be war crimes, the most important of which were: “deliberately directing attacks against civilians, civilian sites, personnel or facilities for humanitarian assistance functions as well as the deliberate launching of a military attack that may result human and material losses,” we urge you to exert pressure on your governments and force them to:

  • Exert sufficient political and diplomatic pressure to pressure the Israeli Occupation to respect human rights and prevent them from resorting to the use of excessive force or the implementation of any crime or violation.
  • Compel the Israeli occupation state to comply with General Assembly Resolution 194 of 1948 as one of the conditions for its acceptance as a member of the United Nations at the time.
  • Obligate the Israeli occupation state to adhere to the articles of the Universal Declaration of Human Rights, which was issued on December 12, 1948, and was one of the conditions of its acceptance as a member of the United Nations, where the second paragraph of Article 13 states that everyone has the right to leave any country, including his country or to return to his country.
  • Obligate the Israeli occupation state to implement the International resolutions relating to the return of the Palestinian refugees, including the UN Security Council Resolution 242 of 1967, and all relevant resolutions as an inalienable rights of the Palestinian people, most important of which is Resolution 3236 of 22 November 1974, which in paragraph 2: “Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return”.
  • Compel the Government of the occupation, as a State party to the Refugee Convention and Protocol, to not detain migrants and asylum-seekers, and not to criminalize asylum-seekers for irregular entry.

I’ll be writing more about this very important action as it unfolds. This week, I’m sending a letter to my two U.S. Senators and Congresswoman with a copy of this blog post, making them aware of The Great Return March. I’m also writing a letter to my local paper and will try to tie this action to something local so that they’ll print it.

Bravo to the Coordination Committee.  These future leaders of Palestine give me hope, just as the youth in America give me hope.

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Filed under Gaza, Israel, nonviolent resistance, Occupation, Peaceful, Uncategorized, United Nations

Israel has crossed the red line – no longer the lawful occupant of the Palestinian Territories

When is enough, enough under international law?

michael_lynk

Special Rapporteur S. Michael Lynk

That’s the question that the UN rapporteur for human rights in the occupied territories, S. Michael Lynk, asked and answered in his report to the U.N. General Assembly in October 2017.

Lynk is a Canadian professor of law and human rights expert. His words should carry some umpf! in the international community, if not with Israeli officials who have persistently refused to accept more than 40 UN resolutions over the past half century pertaining to the occupied territories.

To summarize this 22 page report, which should be required reading for everyone interested in the future of Israel and Palestine, Professor Lynk is opening a new (legal) chapter in Israel’s occupation of East Jerusalem, the West Bank, and the Gaza Strip.

He is making the case for recognizing Israel as an illegal occupier, and calling on the international community to use all of the tools in its toolbox to end this illegal occupation.

Israel denies that it’s occupying Palestine, despite the contrary opinion of the rest of the world. (Israeli deputy foreign minister denies Palestinians live under occupation: ‘This is Judea and Samaria’)

Loss of Land

“The Israeli occupation has become a legal and humanitarian oxymoron: an occupation without end,” Professor Lynk writes. It is the longest-running military occupation in the modern world.

The inability to end the Israeli occupation has been an abject failure of international diplomacy, a darkening stain on the efficacy of international law and the source of multiple broken promises to the Palestinian people. Nor does the prolongation of this occupation serve the people of Israel, for it corrodes their society and their public institutions by entangling them in their government’s drive to foreclose a viable and just solution to the half-century of occupation and the century-long conflict, and makes them the benefactors — unwittingly or not — of a profoundly unequal and unjust relationship.

How should we characterize this occupation in 2017? Professor Lynk proposes that Israel is no longer the lawful occupant of the Palestinian territory, but has now crossed a red line and has become the unlawful occupier. His argument goes like this:

  1. “Two decades into the 21st century, the norm that guides our global community is that people are citizens, not subjects, of the state that rules them. … Colonialism, occupation and other forms of alien rule are very much the exception to this norm.”
  2. The right of self-determination, and economic, social and cultural rights — are to be interpreted broadly, while the exceptions to these fundamental rights — such as military necessity, significant threats to national security or public emergencies — are to be interpreted narrowly.
  3. Three core purposes of modern international humanitarian law related to foreign military occupation are: (a) closely regulate the occupation to ensure that the territory achieves, or is restored to, a state of sovereignty, (b) prevent the territory from becoming a fruit of conquest, and (c) safeguard the protected people under occupation.
  4. The International Court of Justice has affirmed that international human rights law continues to apply in times of conflict and throughout an occupation.
  5. The right to self-determination is a right that applies to everyone living under occupation, and the court has specifically recognized the right of the Palestinians to self-determination.
  6. Israel has occupied the Palestinian territory – the West Bank, including East Jerusalem and Gaza – since June 1967, and therefore the Fourth Geneva Convention applies in full. 
  7. Palestinians are “protected persons” under international humanitarian law and are entitled to the protections of the Fourth Geneva Convention. The international community has widely rejected Israel’s assertions that the Fourth Geneva Convention does not apply.

So what should the international community do?

Professor Lynk proposes that the U.N. General Assembly seek an advisory opinion from the International Court of Justice on the question of the legality of the occupation.

ICJ

International Court of Justice

Courts and lawyers favor tradition and precedent (stare decisis), and Professor Lynk finds ample precedent in the ICJ’s 1971 Namibia opinion, where the court decided that South Africa’s continued presence in the territory of Namibia was illegal.  (On a side note, I’ve just completed a couple of online courses in International Humanitarian Law and International Human Rights Law, and really appreciate how Professor Lynk’s report connects all of the dots that I’ve just learned.)

Application of the Legality Test to Israel’s Occupation

The ICJ should consider four elements, Professor Lynk writes, to determine if Israel is now an illegal occupying force.

  1. The prohibition against annexation: Israeli officials have made their intentions crystal clear. There are now 210,000 Israeli settlers living in occupied East Jerusalem, and another 400,000 settlers live in approximately 225 settlements in the occupied West Bank. Israel has been establishing its “facts on the ground” for a de facto annexation of the occupied lands that belong to the Palestinian people under international law. “The settlers live under Israeli law in Israeli-only settlements, drive on an Israeli-only road system, and benefit greatly from the enormous sums of public money spent by Israel on entrenching and expanding the settlements. … What country would invest so heavily over so many years to establish many immutable facts on the ground in an occupied territory if it did not intend to remain permanently?”
  2. Occupations must be temporary, and not indefinite or permanent. “Modern occupations that have broadly adhered to the strict principles concerning temporariness, non-annexation, trusteeship and good faith have not exceed 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led coalition’s occupation of Iraq.” Israel’s occupation is 50 years old. “The only credible explanation for Israel’s continuation of the occupation and its thickening of the settlement regime is to enshrine its sovereign claim over part or all of the Palestinian territory, a colonial ambition par excellence.”
  3. The Best Interest/Trust Principle. “Under international law, Israel is required to administer the occupied Palestinian territory in the best interests of the Palestinian people, but the social and economic impact of the occupation on the Palestinians in the occupied territory, which had always been disadvantageous, has become increasingly dire in recent years.” Professor Lynk’s report spells out in no uncertain terms how Israel has taken advantage of the natural resources, and ruled the Palestinian Territory as an internal colony, to create a “strangled economy, mounting impoverishmet, daily impositions and indignities, and receding hope for a reversal of fortune in the foreseeable future.”
  4. Good Faith. Professor Lynk says that Israel has not been acting in good faith because it hasn’t complied with the 3 elements above, and it hasn’t complied with specific directions issued by the United Nations pertaining to the occupation. The enumeration of Israel’s noncompliance with international law is damning and shocking when it’s all spelled out in one place. Israel (and it’s best friend the United States Congress) might argue that the United Nations is bias against Israel, but what Israel really means is that the community of nations has not accepted Israel’s blatant attempt to unilaterally rewrite international law to suit its own self-interest.
checkpoint

Israeli checkpoint for Palestinians posted by Husam Jubran on Facebook Nov. 2, 2017

Professor Lynk’s concluding observation is an alarm bell that every lawyer should take seriously, regardless of personal opinions about Israel / Palestine and the occupation.

International law is the promise that states make to one another, and to their people, that rights will be respected, protections will be honoured, agreements and obligations will be satisfied, and peace and justice will be pursued. It is a tribute to the international community that it has sustained this vision of international law throughout its supervision of Israel’s occupation of the Palestinian territory.

But it is no tribute that — as the occupation deepened, as the occupier’s intentions became crystal clear, and as its defiance grew — the international community recoiled from answering Israel’s splintering of the Palestinian territory and disfiguring of the laws of occupation with the robust tools that international law and diplomacy provide. International law, along with the peoples of Palestine and Israel, have all suffered in the process.

The challenge now facing the international community … is to devise and employ the appropriate diplomatic and legal steps that, measure by measure, would completely and fully end the occupation.

 

 

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The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War

By Theodor Meron (The American Society of International Law, 2017)

Judge Meron’s 19-page article is available here to download.

Rarely does a jurist have the opportunity to render a legal opinion twice on the very same case or controversy fifty years apart.

Theodor Meron

Theodor Meron

Theodor Meron was 37 when he was appointed the Legal Adviser of the Israel Ministry of Foreign Affairs shortly after the Six-Day War. He was asked to address some of the international legal implications that followed from that war.

He opined on September 14, 1967 that “the establishment of civilian settlements in the occupied West Bank and other conquered territories violates the Fourth Geneva Convention related to the protection of victims of war and, specifically, its prohibition on settlements (Article 49(6)).” This prohibition is categorical, he wrote, and “not conditioned on the motives or purposes of the transfer, and is aimed at preventing colonization of conquered territory by citizens of the conquering state.”

In March 2017, his opinion has not changed. Given the inexorable demographic change in the West Bank over the past fifty years; the adoption by the Security Council of Resolution 2334 on December 23, 2016; John Kerry’s unprecedented speech delivered on December 28, 2016; and Netanyahu’s immediate rejection of the “shameful UN resolution” — Judge Meron felt compelled to speak up again in support of international law and its requirements and application to the settlements in the occupied West Bank.

Judge Meron’s career is noteworthy and worth recounting here because his opinion carries weight, except with Israeli leaders.

Meron

Theodor Meron – President of the International Criminal Tribunal for Rwanda

Judge and President of the United Nations Mechanism for International Criminal Tribunals; Judge and Past President of the United Nations International Criminal Tribunal for the former Yugoslavia; former Judge of the United Nations International Criminal Tribunal for Rwanda; Charles L. Denison Professor Emeritus and Judicial Fellow, New York University School of Law; Visiting Professor, University of Oxford, since 2014; past Co-Editor-in-Chief of the Journal; past Honorary President of the American Society of International Law.

Settlements in the Occupied West Bank

What is the scope of the problem? The Palestinian president says there will be no negotiations until Israel ends the expansion of settlements in the occupied West Bank. The Israeli prime minister says the Palestinians must come to the bargaining table with no preconditions, but he demands that the Palestinians first recognize Israel as a Jewish state. There have been no negotiations since 2010.

2016-mena-israel-overviewmap

Today there are nearly 600,000 Israeli settlers living in the West Bank and East Jerualem. There are 127 government-sanctioned Israeli settlements (not including East Jerusalem and Hebron), and approximately 100 “settlement outposts”. According to the Central Bureau of Statistics, the annual growth rate for the settler population (excluding East Jerusalem) in 2015 was more than two times higher than that of the overall population in Israel: 4.1% and 2% percent, respectively.  Translated: there are more Israelis today moving to Palestine than to the State of Israel.

Check out this segment on NPR from December 2016 about the settlements.

The Jewish settlements were illegal in 1967 and they remain illegal today.

The Fourth Geneva Convention, adopted in 1949 to protect civilians in a war zone, is considered the “gold standard of humanitarian law.” While 196 countries have signed on, the United Nations concluded in 1993 that the Geneva Conventions had passed into customary law and therefore everyone is bound by them.

What does the Fourth Geneva Convention require of the occupying power (Israel) towards the protected persons (Palestinians) in the territories it occupies?

  1. No collective punishment (article 33) – including no pillage, intimidation, or terrorism. Collective punishment is considered a war crime.
  2. May not forcibly deport protected persons or transfer part of its own civilian population into the occupied territory (article 49).
  3. Must facilitate the proper working of all institutions devoted to the care and education of children (article 50).
  4. No destruction of property belonging to the protected persons or to public authorities (article 53).
  5. Maintain the public health and hygiene along with the medical facilities in the occupied territories (article 56).

Nakba refugees

Despite clear and strong opinions from the International Court of Justice, supported by a score of Security Council resolutions, the International Red Cross, and a rare consensus of the international community on the applicability of the Fourth Geneva Convention to the occupied Palestinian territories, the State of Israel has built a 50-year record of parsing the Fourth Geneva Convention, applying provisions it likes while rejecting others. “This opacity is made worse,” Judge Meron writes, “by the reluctance of Israel to divulge in public the list of the Fourth Geneva Convention’s humanitarian provisions which it is prepared to apply.”

Disrespect for international law is, alas, not unusual in the affairs of states. It is rare, however, that disrespect of an international convention would have such a direct impact on the elimination of any realistice prospects for reconciliation, not to mention peace. And it is rarer still that such disrespect of internatioal law should subsist given the number of pronouncements on the matter.

Israeli leaders rejected Meron’s opinion in 1967 and, undoubtedly, reject it today. They hinge their position on the argument that the territories are not occupied because conquered territory only becomes occupied territory when it belongs to a legitimate sovereign that was ousted. This theory disputes the status of Jordan as such a sovereign of the West Bank in 1967 which, in the opinion of Israel makes the Geneva Convention inapplicable de jure. The government has simply decided, in the absence of an international obligation to do so, to act de facto in accordance with the humanitarian provisions of the Convention.

Judge Meron rejects this argument summarily, asking “what would prevent every conquering state from contesting the sovereignty of every defeated state, even where no legitimate doubts about the sovereignty arise?” In a nutshell, the status of the lands conquered in the Six Day War has no bearing on the applicability of the Fourth Geneva Convention to Israel, as the conquering power.

While the Fourth Geneva Convention bestows rights on the “protected persons” (Palestinians in this case), the Hague Convention No. IV establishes responsibilities on the occupying power, and Israel’s Supreme Court has recognized the applicability of the Hague Convention No. IV as customary law to the West Bank.

There is the requirement to respect private property (Article 46), and the property of municipalities, and that of institutions dedicated to religion, charity and education, and arts and sciences. (Article 56). The occupying power must also safeguard and administer the real estate in accordance with the rules of usufruct.

With the construction of the “security wall” encroaching on Palestinian lands, and a record number of housing demolitions in the West Bank in 2016, the reasonable question Palestinians and the rest of the world might ask is “Who is going to hold the State of Israel accountable for its violations of international law?”

12794787_10208838393703043_5184863994902971158_o Judge Meron concludes his 2017 opinion:

Those of us who are committed to international law, and particularly to respect for international humanitarian law and the principles embodied therein, cannot remain silent when faced with such denials or self-serving interpretations.

But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a two-state solution, and thus of reconciliation between the Israelis and Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other people can no longer be accepted in our time.

 

 

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U.S. Senate to consider S.Res.6 opposing international law – January 17, 2017

loss-of-landAs the US Senate considers S.Res.6 condemning the UN and specifically asking for the repeal of UN Resolution 2334, the Palestine delegation addresses the UN Security Council today. It’s worth reading the Ambassador’s statement in its entirety, here.

In comparison to Senator Marco Rubio’s language in S.Res.6, Ambassador Dr. Riyad Mansour sounds like an adult.

“Resolution 2334 (2016) is not anti-Israel; it is anti-settlements, anti-violence, anti-human rights violations. As such, resolution 2334 (2016) is clearly pro-peace, pro-international law, pro-two-States and thus pro-Palestine and pro-Israel.
Moreover, resolution 2334 (2016) cannot by any sense of reason be characterized as one-sided. The law – on which the resolution is firmly based – is universal and fair and can never be biased. This is a fact and is the lifeline of our international system.”

What is so striking to me is that one speaks of the facts, while the other obfuscates the facts in rhetoric that is clearly Orwellian.  You can guess which is which.  Have we truly descended into a post-factual world where the truth doesn’t matter any more?

After the UN Security Council’s approval of UNSC Res. 2334 in December 2016, NPR prepared a short piece — 7 Things To Know About Israeli Settlements.

When the Israelis and Palestinians first began peace talks after a 1993 interim agreement, the West Bank settlers numbered a little over 100,000. Today they total around 400,000 and live in about 130 separate settlements. That number does not include East Jerusalem.

Peace Now keeps a pretty good record of Israel’s settlement activity in the West Bank and East Jerusalem.  Check it out here.

Unsuspecting Americans might not realize that S.Res.6 is defending Israel’s settlement activity in the occupied Palestinian territory which has long been held illegal under the Fourth Geneva Convention. Why are our Senators even voting on a resolution premised on support of illegal activities?

The practical effect of S.Res.6 is that it encourages the status quo, where Israel’s settlement expansion continues. Should the U.S. Senate really encourage Israel to continue eating the pizza while urging the parties to talk about how to divide the pizza?

I’ll be watching closely to see how “my” two Senators from New Mexico vote today. They have heard my opinion about S.Res.6. If they vote in the affirmative, I’m going to ask them for an explanation of their vote.

 

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The Elephant in the Room

This short 3 minute video presents the facts without any inflammatory rhetoric.  Just the facts.  But I know some people will think this is very confrontational.  “How dare you talk about the elephant in the room?”

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