Press Releases published by Palestinian Centre for Human Rights concerning IVth Geneva Convention
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 Syrias 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 Israels refusal to apply de jure the provisions of the convention and Israels 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 HCPs, 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, Israels 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 encompassany provision that could undermine or prejudice the rights granted to Palestinian civilians or 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 Israels 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 Israels continuous refusal to fulfill its legal obligations under the convention, the UN General Assembly has asked the HCPs 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 HCPs 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 HCPs 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 PNAs 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 HCPs 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 HCPs to convene.
The Palestinian Center for Human Rights (PCHR) asserts the following points:
First, the UN General Assembly resolution calling for the HCPs 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 HCPS to convene and ensure the applicability of the IVth Geneva Convention. A conference of the HCPS would focus attention on Israels 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 HCPs to the Palestinian Occupied Territories, not a quadrilateral meeting that would divert attention from that focus. The issue raised is noa political one, but a legal one that demands that the HCPs, including the 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 HCPs. 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 HCPS of the IVth Geneva Convention. This conference is essential for the HCPs 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 HCPs 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 HCPs. In this regard we demand that the Swiss government prepare for the HCPs 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 HCPs should occur in spite of Israeli and American refusals because each party of the HCPs 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 HCPs, 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.
Released @12:00 hours GMT 24 June 1998
The Palestinian Centre for Human Rights convened a meeting to discuss the United Nations request for a conference of the High Contracting Parties to the IV Geneva Convention
as it applies to the Palestinian Territories
On June 21, 1998, a meeting took place at the Palestinian Centre for Human Rights (PCHR) regarding the authorization of the United Nations General Assembly for the Swiss government to take necessary steps to convene a conference of the High Contracting Parties (HCP) to the IV Geneva Convention of 1949 relative to the protection of civilian persons in times of war. The purpose of the proposed conference is to determine measures to ensure that the HCPs respect their obligations under the Convention in the OPT. PCHRs meeting was convened in light of the communication sent by the Swiss Government to the concerned parties which clearly indicates that the Swiss are circumscribing the essence of the UN Resolution under American and Israeli pressure.
Participants in the meeting included members of the Palestinian Legislative Council, Ministry of Planning and International Cooperation and Ministry of Justice as well as the Chairman of the Palestinian Bar Association and representatives of local NGOs and political parties.
Mr. Raji Sourani, Director of PCHR, welcomed the participants and highlighted the potential danger surrounding the preparations by the Swiss government for the conference. He referred to the UN General Assembly Resolution A/RES/ES-10/5 which authorizes the Swiss government to prepare for the convening of a conference of the HCP of the IV Geneva Convention. He added that the Centre has been following the issue since 1997, and that a report was prepared by the Centre assessing the steps taken thus far by the Swiss government which clearly violate the letter and the spirit of the UN resolution, especially in terms of convening a quadrilateral meeting of the Swiss and the Israeli governments, the PNA and the ICRC. The report also affirmed the potential danger in simply tolerating these measures which undermine the norms of international law.
Issam Younis, coordinator of the Unit on Economic and Social Rights at PCHR, indicated that the international community has accepted the applicability of the IV Geneva Convention in the OPT, occupied in 1967. He added that Israel is the only state that refuses to accept the applicability of the Convention on the OPT and that its denial does not contain any legal basis and contradicts the provisions of the Convention. Israel claims, instead, that it applies the humanitarian articles of the Convention de facto which, as Younis pointed out, suggests that Israel erroneously believes that the IV Geneva Convention contains non-humanitarian provisions even though the Convention is considered a fundamental pillar of international humanitarian law. Moreover, the Israeli claim of implementing the huaspects of the Convention is contradicted by their policies such as the legalization of torture, land confiscation, willful killings, house demolitions and deportations, some of which constitute grave breaches as defined by the IV Geneva Convention and in fact amount to war crimes.
Younis stated the Palestinian position which centers on the demand for the de jure applicability of the Convention and for protection of Palestinian civilians in the OPT. Younis refered to the more than 40 UN Security Council Resolutions between 1967 and 1993 which demand Israel to apply the Convention to the OPT.
Participants discussed the developments and the performance of the Palestinian Authority (PA) during this period and the majority criticized the PAs performance. Many of the participants referred to the inherent shortcomings of the Oslo Agreements in not recognizing the OPT as being occupied territories and therefore not establishing the applicability of the IV Geneva Convention in those territories. Participants also refered to the danger not only in ignoring the applicability of the Geneva Convention but also in ignoring all other resolutions and provisions in international law that support the rights of Palestinian people.
At the end of the meeting participants reaffirmed the following:
The Ministry of Planning and International Cooperation as the representative of the Palestinian government at the meetings with the Swiss government, should issue a comprehensive memorandum detailing its involvement until now.
PCHR will prepare a set of guidelines to be taken during the proposed meeting of experts this September, called for in the UN Resolution.
The whole matter of the negotiations should be transferred to the PLO since it is the only authority that is authorized to negotiate issues related to the Palestinian people.
Any further meetings which the PA participates in should be subjected to the legal scrutiny of Palestinian, Arab and international experts and a legal forum should be established for any Palestinian delegation participating in future meetings.
ADVISORY EXPERT MEETING ON THE FOURTH GENEVA CONVENTION, GAZA 8 AND 9 AUGUST, 1998
In its resolution ES-10/5 of 20 March 1998 the General Assembly reiterated once again its recommendation that the High Contracting Parties to the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War of 12 August 1949 (Geneva IV) convene a conference on measures to enforce the Convention in the Occupied Palestinian Territories, including Jerusalem, and to ensure its respect in accordance with Article 1 of that Convention, in which the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. It also reiterated its recommendation to the Government of Switzerland, in its capacity as depository of the Geneva Conventions, to undertake the necessary preparatory steps, including the convening of a meeting of experts in order to follow up on the above mentioned recommendation.
On July 15, 1998, the Swiss Government sent the Palestinian Authority a proposal for a mechanism for the application of Geneva IV in the occupied Palestinian territories. The Palestinian Authority requested the Palestinian Centre for Human Rights (PCHR) to give an advisory opinion on the position that the Palestinian Authority should take on that proposal and on its participation in any future meetings with the Swiss government. To fulfil this task the PCHR convened an a meeting of Palestinian and foreign legal experts in Gaza on August 8 and 9 1998 in order to give its views on the following legal questions:
(1) What are the responsibilities of the High Contracting Parties to Geneva IV, and of the Swiss government as its depository, as well as the United Nations, in respect of the de jure application by Israel in the Occupied Palestinian Territories, particularly after the conclusion between Israel and the Palestine Liberation Organisation as the representative of the Palestinian People of the Oslo Accords?
(2) How can the general position of the PLO that Geneva IV be implemented de jure be translated into specific demands and practical measures to that end?
(3) What will be the legal implications of achieving a Final Status Agreement between the PLO and the Israeli government and an eventual unilateral declaration of the Palestinian State in May 1999 on the applicability of Geneva IV? More specifically, how can it be ensured that the outcome of the Final Status Negotiations do not violate any provisions of Geneva IV before and after its eventual termination?
The Advisory Meeting of Experts on Geneva IV presents the following conclusions and recommendations to the PCHR for its guidance of the Palestinian Authority on the issues raised in the above three questions, and in order to serve the interests of the Palestinian people protected under Geneva IV.
1.1 Resolution ES-10/5 was adopted under the Uniting for Peace Resolution of 3 November 1950 - A/RES/377(V) - according to which the General Assembly shall consider a threat to the peace, breach of the peace, or an act of aggression in any case, where the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security.
1.2 The General Assembly thus expressed its view that the continuing Israeli violations of Geneva IV, particularly after 1993, in the Occupied Palestinian Territories threaten international peace and security, and that the Security Council has failed to exercise its primary responsibility.
1.3 Resolutions adopted by General Assembly Emergency Special Sessions on collective measures are recommendations to member States. They do not diminish the responsibilities of these States under international agreements. The High Contracting Parties to Geneva IV remain responsible for implementing their obligation to respect and to ensure respect for Geneva IV in all circumstances through the diligent application of the full range of policy instruments relevant to this end.
1.4 The High Contracting Parties to Geneva IV who voted in favour of resolution ES-10/5 expressed the view that they consider the convening of a conference on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, as a collective measure to protect international peace and security against threats posed by Israels persistent and systematic violations of Geneva IV and their damage to the ongoing peace process.
1.5 By voting for this resolution the overwhelming majority of High Contracting Parties committed themselves to the convening of the conference recommended to them by the tenth Emergency Special Session.
1.6 The recommendation of the tenth Special Session to the Government of Switzerland - a non-member State of the United Nations does not release the High Contracting Parties from any of their individual obligations under Geneva IV, nor does it affect their above - mentioned commitment to convene a conference.
1.7 The functions of the depository of a treaty are international in character. The depository is under an obligation to act impartially in its performance. The functions of a depository are administrative unless otherwise provided for in the treaty (Law of Treaties, Articles 76 and 77, which reflect customary law).
1.8 Geneva IV does not provide for additional functions. In the event of any difference appearing between a State and a depository as to the latters functions, the depository shall bring the question to the attention of the signatory States and the contracting States, or, where appropriate, of the competent organ of the international organization concerned.
2. Position of the PLO
2.1 The general position of the PLO in respect of the de jure implementation of Geneva IV implies its intention to act as if it were a High Contracting Party.
2.2 In respect of the provisions of Geneva IV that are customary international law, the position does not change the obligations of the PLO which are peremptory norms of international law (jus cogens). In respect of other obligations international customary law the position expresses the willingness of the PLO to act accordingly.
2.3 In respect of other treaty provisions of Geneva IV, the position may be interpreted and applied as expressing the willingness of the Palestinian State to become a High Contracting Party.
2.4 A State is obliged to refrain from any acts which would defeat the object and purpose of a treaty when it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty (Law of Treaties, Article 18).
2.5 The position of the PLO may be understood as an expression of its view that nothing will be done by it which would defeat the object and purpose of Geneva IV in general, and the position of protected persons in the occupied Palestinian territories in particular.
Outcome of the Final Status negotiations
3.1 The agreed final status of the Occupied Palestinian Territories or a new declaration of Palestine statehood will have no effect on the existence of a state of belligerent occupation in the Gaza Strip and the West Bank, including Jerusalem, for so long as Israel continues to exercise any of the functions of government therein.
3.2 Statehood is not inconsistent with belligerent occupation. Rather it is typical that when territory is under occupation, there is sovereign power, even though that sovereign power is, temporarily, deprived of the possibility of exercising control over the territory.
3.3 The case of the occupied Palestinian territories is more complex, because during the time of occupation, Jordan renounced its claim to the West Bank and the PLO declared statehood in 1988. There is no reason, however, why, during an occupation sovereignty may not change, or sovereignty that was unclear might become clear.
3.4 The concept of control should not be confused with the concept of sovereignty. Control and sovereignty are distinct in a situation of belligerent occupation. Palestinian statehood, whether beginning in 1988 or 1999, does not affect the status of the territory as being under belligerent occupation. Belligerent occupation ends when the Occupying Power ceases to exercise or control any of the functions of the government in the occupied territories.
3.5 Protected persons who are in occupied territories shall not be deprived, in any case or in any manner whatsoever, of the benefits of Geneva IV by any change introduced, as result of the occupation of a territory, into the institutions or government of the said territory by the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory (Geneva IV, Article 47).
3.6 The Final Status Agreements have no impact on the application of Geneva IV nor has the latter Convention any impact on the final status of the occupied Palestinian territories.
1. The Advisory Meeting of Experts recommend that cognizance be taken of the following:
1.1 There can be no derogation from Geneva IV;
1.2 That whatever the legal status of the DOP and subsequent agreements, Geneva IV takes precedence;
1.3 That Geneva IV remains applicable throughout the West Bank (including East Jerusalem) and the Gaza Strip, thus Israel remains accountable for its actions to the extent that it exercises the functions of government in the Occupied Palestinian Territories. This accountability extends to actions committed by the Palestinian Authority under Israeli duress which amount to breaches of the Convention.
2. Accordingly it is further recommended:
2.1 That any arrangements or initiatives in relation to the Occupied Palestinian Territories must be fully in accordance with Geneva IV, and must recognize that the application of the Convention is non-negotiable. Accordingly meetings such as that held between Israel, the PLO, Switzerland (the depository for the Conventions), and the ICRC on 9 11 June 1998 (generally referred to as the quadripartite meeting), convened by the depository in response to UNGA Res. 10/4 of 13 Nov. 1997 cannot proceed on any basis other than that the de jure application of Geneva IV to the Occupied Palestinian Territories is given and is non-negotiable.
2.2 That any mechanism put in place in response to the Resolution must be fully in accordance with Geneva IV, must be based upon the de jure application of the Convention, and must not absolve, or appear to absolve, the High Contracting Parties of their responsibilities to ensure respect for the Convention. By reference to these criteria, the mechanism put forward by the Swiss Government must be considered defective;
2.3 That the High Contracting Parties be reminded of their obligations, and their pre-existing legal capacities, to repress grave breaches of the Convention;
2.4 That the High Contracting Parties be also reminded that the utilization of the Uniting for Peace Resolution in condemnation of Israeli violations in the Occupied Palestinian Territories implies that such violations constitute a serious threat to international peace and security.
2.5 That the depositary be also reminded of its obligation to act when called upon to do so in an impartial manner, and that it is reminded that its functions are administrative and facilitative unless otherwise called for;
2.6 That due caution, rigour and diligence be exercised by the PLO in order to ensure that protected Palestinian persons receive the full benefit of the Convention and that the de jure position is in no way prejudiced;
2.7 That a multi-layered approach be adopted to the question of the enforcement of the Fourth Geneva Convention in the Occupied Palestinian Territories, recognizing the threat which continuing serious violations, including grave breaches of the Convention, and particularly the maintenance and construction of settlements, present to the peace process, and to international peace and security;
2.8 That in view of the recommendation to the High Contracting Parties in UNGA Res. 10/4 of 13 Nov. 1997 to take measures on a national or regional level, that the initiative of the European Union in implementing the territorial applicability clause in the Interim Agreement on Trade and Trade-Related Matters with Israel be supported and endorsed as a suitable model for adoption elsewhere. It should also be made clear that the provisions of the Euro-Mediterranean Association Agreements requiring respect for human rights, include respect for the instruments of international humanitarian law;
2.9 That an immediate initiative be taken to convene a meeting of states, identified by their concern for breaches of Geneva IV in the Occupied Palestinian Territories, so that they may resolve to ensure full Israeli compliance with the Convention in whatever practical manner they may deem appropriate and effective in accordance with international law;
2.10 That all efforts be made to ensure that the actions taken by High Contracting Parties in response to the depositorys proposal for an expert meeting of High Contracting Parties following from such meeting, serve the end specified in the above paragraph;
2.11 That the above approach be complemented by a campaign to highlight violations of Geneva IV in the Occupied Palestinian Territories in preparation for the 50th anniversary of the Geneva Conventions.
9 August 1998
Names of experts:
. Paul de Waart Netherlands
. John Quigley U.S.A.
. Agneta Johansson Sweden
. Colm Campbell Ireland
. Per Stadig Sweden
. Greg Nott South Africa
. Lynn Welchman United Kingdom
. Georges Henri Beauthier Belgium
. Robert Remacle Belgium
. Charles Shamas Palestine
. Khader Shukirat Palestine
. Mohammed Abu Harthiah - Palestine
. Raji Sourani- Palestine
. Issam Younis Palestine
. Eyad El-Alami Palestine
. Hamdi Shaqqura - Palestine
. Frauke Seidensticker Observer, Switzerland
Report on the Convening of a Meeting of Experts Organised By the Swiss Government which Violates the Spirit and Letter of the UN Resolutions
18 October 1998
The Swiss government has decided that the period between 27th and 29th October1998 will be the time for the convening of a meeting of experts that will be attended by representatives from the PLO and the Israeli government, as well as other participants invited by the Swiss government. The aim of the meeting is to examine the problems regarding the IVth Geneva Convention relative to the protection of civilian persons in times of war, both in general and in particular relation to Occupied Territories. The purpose of the meeting will be analogous to that of the 1st periodical meeting on international humanitarian law that took place in Geneva from 19th to 23rd January 1998. In the spirit of periodical meetings, the objective is to maintain and strengthen dialogue between the High Contracting Parties to the Geneva Convention on general problems regarding the application of international humanitarian law. This objective is based on the practice established in the 1st periodical meeting. The nature of the proposed meeting should be an exchange of views that could be structured along the following lines:
Identification of problems and their causes
According to UN resolutions ES 10/2, ES 10/3, ES 10/4, ES 10/5, the UN General Assembly (UNGA) has asked the High Contracting Parties to the IVth Geneva Convention to convene a conference. The aim of such a conference is to investigate the measures to be taken to implement the Convention in the OPT and to fulfil the obligations of Article 1 which emphasizes that it should be respected under all circumstances. To achieve that, the UNGA authorized the Swiss government to act as the Depositary of the convention, which involves taking the necessary action to prepare for the conference, including the possibility of convening a meeting of experts. The PLO should of course, be invited to the meetings and contributory preparations. In spite of the clear identification of the Swiss role, the Swiss government is intentionally seeking to undermine the value and violate the spirit and letter of the resolutions. One example of this is the Swiss invitation to both the Israeli government and the Palestinian National Authority for a quadrilateral meeting to be attended also by Switzerland and the ICRC. The meeting took place in Geneva between 9th and 11th June 1998, in spite of PCHRs demand not to convene such a meeting due to the potential dangers that could arise. One area of concern is that the High Contracting Parties concerned regarding the applicability of the Convention have nothing to do with such a meeting, given that the question of implementing International Humanitarian Law (especially the IVth Geneva Convention) will be a Palestinian - Israeli issue, which was not at all the aim of the UN resolutions.
Moreover, the Swiss government in mid July 1988, in a very precarious development, concluded a proposal for a mechanism to the application of the IVth Geneva Convention in the OPT. This is in violation of Switzerlands authorized role which should solely be to prepare for the convening of the conference of the High Contracting Parties. Its role should not be to determine the track and the essence of the negotiations from the beginning, especially the proposal to preserve the poor human rights situation in the OPT and the continued violation of the provisions of the convention. In effect, such behaviour is also a serious breach of the role of the depository whose involvement should be restricted to inviting the parties to the meeting. The depositary should not provide any proposals since it is not the owner of the Convention. We therefore believe that the Swiss Governments intentions are unsatisfactory.
As a result of the potential danger of the Swiss arrangements and their consequences on the legal status of the OPT, as well as the applicability of the IVth Geneva Convention in those territories, PCHR has invited a number of international and local experts specializing in international law (especially humanitarian law) to investigate and assess these developments, their consequences and to provide legal advice in that regard. Previously, different figures from the executive and legislative bodies as well as civil society organisations recommended that PCHR organize such a meeting. The experts who met in Gaza between 8th and 9th August 1998, have issued a number of recommendations, among those are:
That any arrangements or initiatives in relation to the OPT must be fully in accordance with Geneva IV and must recognize that the application of the Convention is non-negotiable. Accordingly, meetings such as that held between Israel, the PLO, Switzerland (the depository for the Conventions) and the ICRC on 9-11 June 1998 (generally referred to as the quadripartite meeting ), convened by the depository in response to UNGA Res. 10/4 of 13th November 1997 cannot proceed on any basis other than the de jure application of Geneva IV to the OPT is given and is non-negotiable.
That any mechanism put in place in response to the resolution must be fully in accordance with Geneva IV, must be based upon the de jure application of the Convention, and must not absolve, or appear to absolve, the High Contracting Parties of their responsibilities to ensure respect for the Convention, By reference to these criteria, the mechanism put forward by the Swiss Government must be considered defective.
As for the Swiss invitation regarding the convening of the meeting of experts between 27th and 29th October 1998, PCHR is deeply concerned about the disregard for the letter and spirit of the aforementioned UN resolution in such a meeting, due to the following:
1. The Swiss government has identified that the aim of the meeting is to analyse the problems regarding the IVth Geneva Conference both in general and in particular relation to the Occupied Territories, which makes the content of the meeting absolutely meaningless. Identifying the aim of the meeting in such a way means that any reference to the OPT or to the Israeli Occupation is a deviation from the purpose of the meeting, when in fact the meeting should be devoted to these issues. Indeed, this meeting would be no more or less relevant had it taken place ten years earlier or later. Again this is a breach of the letter and spirit of the relevant UN resolutions which were adopted as a result of a deterioration of the human rights situation in the OPT. The High Contracting Parties were thus asked to convene a meeting to apply the IVth Geneva Convention (according to Article 1).
The Swiss Government has identified the meeting as being analogous to that of the first periodical meeting of International Humanitarian Law and based on the spirit of periodical meetings, especially the 26th International Conference of the Red Cross and Red Crescent in 1995. Therefore, the aim of the meeting will be of a general character and will not relate to any specific situation. In addition, its purpose is to maintain and strengthen the dialogue between the High Contracting Parties regarding the application of International Humanitarian Law. This means that the meeting will not be allocated to discussion on the OPTs, it will merely be dialogue between parties on general issues, which is once again a violation of the role of the Swiss by the UN.
The Swiss Government has described the discussions of the meeting as being unofficial. Therefore no rules of procedure will be applied and there will be no bureau. Switzerland as the depository will chair the meeting. What is the purpose of an unofficial meeting? It is unclear whether or not it is the meeting that has been mentioned in the UN resolutions. If this is the case, then it should be defined and should be subject to the definite rules and procedures. There should be a bureau to organise discussions and to chair the meetings as with any other meetings. By ignoring the official procedures of the meeting, both its role and the issues in question are devalued. Due to the potential danger of the Swiss arrangements, PCHR, while expressing its deep concern, is demanding the following:
One of the main criticisms of PCHR regarding the Palparticipation, is the mixing of the role of the PLO and the PNA. The whole file has been entrusted to the Ministry of Planning and International Cooperation (MOPIC) , while it should in the hands of the PLO for legal and political reasons. This is the case despite the UN Resolutions that stress the role of the PLO in participating and contributing to the arrangements for the conference of the High Contracting Parties.
As a result of the potential danger of these meetings, PCHR demands that the PLO withdraws and does not attend the meeting in this form, as its results would prejudice the Palestinian interests and rights. Also, the rules of international law and the UN resolutions must not be derogated from in reference to a just settlement for the Palestinian question. Moreover, PCHR is demanding that the PLO and its different institutions (especially the Executive Committee and the Palestinian National Council) on the one hand and the PNA (with its Executive Authority and the Legislative Council, as well as political parties and factions) on the other hand, take a strict and upstanding position regarding these developments which could possibly prejudice the rules of international law and its legitimacy.
The Swiss Government should immediately cease its efforts regarding the application of the IVth Geneva Conference in the OPT, considering that it intentionally violated its mandate that had been authorized by the General Assembly. Therefore, if the Swiss Government cannot stand up to Israeli and American pressure. it should ask the UN to release it from its role as long as it is unable to comply with the spirit and letter of UN resolutions.
The High Contracting Parties should break the silence and review the arrangements made by the Swiss Government and take the initiative by immediately convening their conference without delay. The conference itself is not the aim, rather, it is the de jure application of the IVth Geneva Convention in the OPT and to put an end to the systematic violations of its provisions by the Israeli belligerent occupation. The High Contracting Parties are under legal obligation to apply the Convention and to ensure that the steps taken so far will lead to this. An example of what can be done has been set out in the experts recommendations in the meeting in Gaza between 8th and 9th August 1998 . The following was recommended:
That in view of the recommendation to the High Contracting Parties in UNGA Res. 10/4 of 13 Nov. 1997 to take measures on a national or regional level, that the initiative of the European Union in implementing the territorial applicability clause in the Interim Agreement on Trade and Trade-Related Matters with Israel be supported and endorsed as a suitable model for adoption elsewhere. It should also be made clear that the provisions of the Euro-Mediterranean Association Agreements requiring respect for human rights, include respect for the instruments of international humanitarian law .
That an immediate initiative be taken to convene a meeting of states, identified by their concern for breaches of Geneva IV in the OPT, so that they may resolve to ensure full Israeli compliance with the Convention in whatever practical matter they may deem appropriate and effective in accordance with international law.
PCHR is highly concerned about ICRCs participation in the quadrilateral meeting that took place in Geneva between the 9th and 11th of June 1998. This participation undermined its credibility, impartiality and its interest in applying de jure the IVth Geneva Convention of 1949. Although ICRCs current withdrawal from these meetings is appreciated, at the same time we demand that ICRC publicly clarifies its position regarding this matter.
Released @ 12:00 hours GMT, 29th October, 1998
The Palestinian Centre for Human Rights (PCHR) expresses its strong appraisal for the position taken by Mrs Mary Robinson, the UN High Commissioner for Human Rights, with regard to the most recent development relating to the UN General Assemblys recommendation to convene a conference of the High Contracting Parties to the IVth Geneva Convention to address the application and the enforcement of the Convention in the Occupied Palestinian Territories. The General Assembly authorised the Government of of Switzerland to act as the Depositary of the Convention. It is therefore responsible for preparing for such a conference, but all measures that have been taken so far by the Swiss Government contradict the spirit and the content of the UN General Assemblys Resolutions.
PCHR, which has been following this affair closely for many months, especially the measures and steps taken by the Swiss Government and their dangerous consequences, has published many memorandums analyzing the various aspects of the UN resolutions and warning of the dangerous implications of the Swiss initiative. Most recently, PCHR has sent a letter to Mrs Mary Robinson, the High Commissioner for Human Rights, warning of the dangerous consequences of the Meeting of Experts which already took place in Geneva between 27th and 29th October. PCHR has urged Mrs Robinson, the High Commissioner, to do her best to stop the Swiss initiative which contradicts UN resolutions and to ensure the de jure application of the IVth Geneva Convention in the Occupied Palestinian Territories.
On October 27th, the Meeting of Experts began and the statement of the High Commissioner (who was invited as an observer to the meeting) was delivered. The statement reflected strong commitment on behalf of the High Commissioner to ensure the de jure application of the IVth Geneva Convention and the need to provide protection for Palestinian civilians in the Occupied Palestinian Territories. Such commitment is consistent with the position taken by PCHR, which is reflected in its letter to the High Commissioner. Once again, the High Commissioner for Human Rights displays another example for professional human rights work, far from politicization and political expediency. Her speech asserted the need to respect principles of international law and emphasized states responsibilities to ensure respect for human rights and international humanitarian law, especially the IVth Geneva Convention.
The complete text of the High Commissioners statement is below. PCHR hopes that it helps to highlight the dangerous consequences of the steps and measures taken by the Swiss Government. Furthermore, PCHR will continue its activity until the Swiss Government begins to act in conformity to the UN Resolutions.
All correspondence relating to this issue will be published.