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29 Omar al-Mukhtar St

PO Box 1328

Gaza City

Gaza Strip

via Israel

Telefax:

972 8 282 4776

972 8 282 5893

972 8 282 3725

E-mail:

pchr@pchrgaza.org

 

 
International Humanitarian Law: The Only Way Forward

The Oslo process suffered from three severe, related flaws.  First, it was a negotiating process between two vastly unequal parties, without any mechanism to meaningfully mediate the imbalance of power between them.  Second, it placed political expediency above basic human rights and protections granted under international humanitarian law.  Third, it implicitly legitimised Israel’s settlements in the OPT, even though they are prohibited by international humanitarian law.  This allowed Israel, as the stronger side in the negotiations, to evade its obligations while continuing to expand its illegal settlements and violate human rights with impunity.  Instead of ending the occupation and withdrawing Israeli forces and colonists from the Occupied Palestinian Territories (OPT), Oslo repackaged the occupation as a form of de facto apartheid and economic strangulation.  The central element of PCHR’s philosophy is that a just and lasting peace is only possible if built on respect for human rights and international humanitarian law.

 

  • The Fourth Geneva Convention (1949) is a cornerstone of international humanitarian law that ensures minimum protections for civilians in armed conflict and occupation.  It forbids, among other things: the construction of settlements on occupied land (Article 49), unilateral annexation (Article 47), willful killing of civilians (Articles 146-147), collective punishment (33), torture (Articles 31-32, 146-147), and the destruction of property without a compelling military reason (Articles 53, 146-147).  It also requires judicial accountability for those who commit war crimes (defined as “grave breaches” listed in Article 147 of the Convention).  The Convention fully takes into account military necessity and cannot be violated for “security” reasons.

  • Special agreements cannot negatively effect the protections afforded for civilians under the Convention (Articles 7, 47).  Yet during the Oslo process, Israeli violations of the Convention continued, including: expansion of settlements, killings of unarmed civilians, use of torture, and collective punishment (closure).  Moreover, Israel transferred 2,000 Palestinian prisoners from jails in the OPT into Israel proper after signing the accords, in further violation of the Convention.  These violations, especially the expansion of settlements, were key factors in undermining the peace process and setting the stage for a return to violence in 2000.  Since September 2000, Israeli violations of the Convention have escalated to an unprecedented level.

  • Israel is one of 189 states that have signed the Convention (“High Contracting Parties”) and is legally bound to it.  Yet Israel refuses to apply the Convention in the OPT, despite the fact that the international community has repeatedly affirmed that the Convention continues to apply in all areas seized in 1967, including east Jerusalem.  Not only is Israel legally bound to respect the Convention, but all High Contracting Parties are obligated under Article 1 to “ensure respect for the [Convention] in all circumstances.”

  • The international community has failed to abide by its obligations under Article 1 to ensure Israel’s respect for the Convention.  In July 1999, a meeting of High Contracting Parties called by the United Nations General Assembly to discuss ways of enforcing Israel’s respect for the Convention adjourned after only 15 minutes to “give peace a chance.”  The unprecedented expansion of illegal settlements under the Barak government continued, followed by a breakdown in negotiations and a return to violence.  In December 2001, after 14 months of escalating Israeli attacks against Palestinian civilians, a similar meeting adjourned without taking any enforcement measures.  The US and Israel boycotted both meetings with impunity, while the remaining states did nothing more than reaffirm the applicability of the Convention in the OPT.  The US and Israel have consistently opposed any attempts to deploy international monitors or peacekeepers, with the former wielding its veto at the UN Security Council numerous times to this effect.  The failure to enforce Israel’s respect for the Fourth Geneva Convention has allowed it to consistently act as a state above the law.

  • Under the Article 1 obligation, and given Israel’s persistent refusal to apply the Convention since 1967, states must take immediate and practical steps to ensure that Israel fully applies international humanitarian law in the OPT, and should pressure other states to do so as well.  Such steps could include sanctions such as: a ban on transfers of arms and military equipment, an end to economic aid, suspension of signed agreements, a trade embargo (especially enforcing already-existing laws banning imports made in Israeli settlements in the OPT), downgrading or severance of diplomatic relations, and censure in various international forums.

  • Israel’s occupation and settlement system in the OPT is a form of de facto apartheid that is the root cause of instability in the region.  As most of these policies violate Israel’s existing legal obligations under the Fourth Geneva Convention, it is clear that the enforcement of international humanitarian law presents a clear, consistent, and effective means of addressing violence in the region.  By compelling Israel to dismantle settlements, refrain from attacks against civilians, end its policies of collective punishment, and ensure judicial accountability for suspected war criminals, the international community can create a stable environment in which Palestinians and Israelis can resolve outstanding political issues and conclude a just, lasting, and comprehensive peace.