Politicization of the International Humanitarian Law

 

 

An Analytical, critical Study of the Conference of the High Contracting Parties to the Fourth Geneva Convention

Series Study (21)

 

 

Introduction

The Legal Status of the OPT

The United Nations Resolutions to Convene a Conference of the HCP to the Fourth Geneva Convention

The Preparatory Steps taken by Swiss Government

1. The Quadrilateral Meeting

2. Proposal for Mechanism

3. Expert Meeting

International Campaign for the Implementation of the Convention in the OPT

The Meeting of the Euro-Mediterranean NGO’s Network

The First Conference of the Arab Human Rights Movement (Casablanca)

Meeting of Afro-Asian People’s Solidarity Organization (AAPSO)

The United Nations International Meeting on the Convening of the Conference on Measures to Enforce the Fourth Geneva Convention in the Occupied Palestinian Territory, Including Jerusalem. “The Cairo Meeting

The American Role in Undermining the Convening of the Conference

The Conference of the HCP

The Parallel Meeting of Human Rights Organizations

Follow-up

Palestinian Centre for Human Rights’ Press Releases Relevant to 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

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

Advisory Expert Meeting on the Fourth Geneva Convention, Gaza 8 and 9 August, 1998

Report on the Convening of a Meeting of Experts Organised By the Swiss Government which Violates the Spirit and Letter of the UN Resolutions

Report on the UN resolution that recognizes the 15th July, 1999 as dead line for the convening of the conference of the HCPs to the IV Geneva Convention of 1949

Draft Working Paper Presented for Discussion by PCHR to Palestinian, Regional, and International Human Rights Organizations

Position Paper Concerning Conference on Implementation of the IVth Geneva Convention in the Occupied Palestinian Territories

Palestinian Human Rights Organizations Demand Convening of the Conference of the High Contracting Parties to the Fourth Geneva Convention at Its Specified Time of July 15, 1999

PCHR condemns the empty seat policy by United States of America, Canada and Australia

Statement of the U.N High Commissioner for Human Rights at the Meeting of Experts on General Problems concerning the 4th Geneva Convention

U.N Resolutions concerning IVth Geneva Convention

Press Release Issued by United States Mission to the United Nations

The Statement of Switzerland Government at the United Nations General Assembly

Declaration of the Swiss Delegation at the 55th Session of the United Nations Commission on Human Rights (1999)

Documents Relevant to the Conference

A Draft Diplomatic Memorandum

The English Version of the Presidential Report

The Draft Swiss Call for the Expert Meeting

A Proposed Mechanism

Experts' meeting on the application of the Fourth Geneva Convention

A Letter by the Swiss Foreign Ministry on the Call for Convening the Conference

A Letter by PCHR to Swiss Foreign Ministry Calling to Join the Conference

Letter by PCHR to Mr. Pierre-Yves Fux of the Swiss Foreign Ministry on Accrediting Human Rights Organizations as Observers in the Conference of the High Contracting Parties – July 8, 1999

The 14-15 July Parallel Meeting of Human Rights Organisations to the 15 July 1999 Conference of High Contracting Parties to the IVth Geneva Convention

PARALLEL MEETING OF HUMAN RIGHTS ORGANISATIONS FOURTH GENEVA CONVENTION 14 –16 July 1999

The Final Statement of the Conference of High Contracting Parties to the Fourth Geneva Convention

The Response of the Swiss Foreign Ministry on the Conference

The Response of UK on the Conference

Letter by PCHR on the Decision of Israeli High Court on Torture

The Response of the British Government to the Message of PCHR on Torture

Documents of the Expert Meeting (Geneva 27-29 October, 1998)

Doucuments of International, Arab, and Israeli Human Rights Oranizations on Convening the Conference of the High Contracting Parties to the Fourth Geneva Convention

The Casablanca Declaration of the Arab Human Rights Movement Adopted by the First International Conference of the Arab Human Rights Movement Casablanca, 23-25 April, 1999

Press Release Issued by Amnesty International

Press Release Issued by Afro-Asian Peoples’ Solidarity Organization

Press Release Issued by Afro-Asian Peoples’ Solidarity Organization

On the Conference of the High Contracting Parties to the Fourth Geneva Convention

Press Release Issued by Human Rights Watch

Press Release Issued by Amnesty International

Position by Israeli Human Rights Organizations on occasion of the planned conference on 15 July regarding the Implementation of the Fourth Geneva Convention in the Occupied Territories

UNITED NATIONS SESSION ON CONVENING A CONFERENCE ON THE MEASURES FOR IMPLEMENTING THE FOURTH GENEVA CONVENTION IN THE OCCUPIED PALESTINIAN TERRITORIES, INCLUDING JERUSALEM

The Statement of the U.N Secretary-General Mr. KOFI ANNAN

The Statement of MR. SAYD EL-MASRY Assistant Foreign Minister for Multilateral Affairs; Representative of the Host Country

The Statement of Ambassador TAHER SHASH The Legal Advisor to the Arab Organization for Human Rights; Former Under Secretary for Foreign Affairs, Cairo

The Statement of Mr. FAROUK ABU-EISSA Secretary – General Arab lawyers Union, Cairo

The Statement of DR. AHMED HASSAN AL-RASHEDI Professor of International Law Faculty of Economic and Political Sciences, University of Cairo

The Statement of DR. JORDAN PAUST Professor of Law, University of Houston, Texas

The Statement of DR. HILAIRE McCOUBREY Director of Postgraduate Affairs Hall University Law School

The Concluding Statement

 

Introduction

 

The Israeli government has systematically violated the provisions of the Fourth Geneva Convention, which is de jure applicable in the occupied Palestinian territory (OPT), since its occupation in 1967. This has resulted in severe deterioration of the humanitarian situation of Palestinians as individuals and as a people. Israel’s grave breaches, and other breaches of the Convention, are a source of deep concern for the international community. The work of the United Nations (both the Security Council and the United Nations General Assembly) demonstrates this concern.

Nevertheless, to date, the international community has not taken any effective steps towards fulfilling their legal obligations, providing protection for Palestinian civilians, and putting an end to the Israeli crimes. As a result of the escalation in the Israeli violations of human rights, especially its intensive settlement activities, the United Nations General Assembly (UNGA) has, since 1998, adopted a series of resolutions reaffirming the stand of the international community regarding the applicability of the Fourth Geneva Convention. Through these resolutions, the UNGA also recommends that the High Contracting Parties (HCP) to the Convention take effective measures to fulfil their legal obligations under the Convention with regard to the OPT.

The importance of the Fourth Geneva Convention lies in the fact that it regulates the relation between the occupying power and the civilians of the occupied territory. It places restrictions and obligations on the occupying power, which govern the conduct of its forces and its administration in the occupied territory. The Convention also provides for the preservation of the rights and interests of the civilian population in the occupied territory. Moreover the Convention places an absolute prohibition on a number of measures and actions by the occupying power. These prohibitions cannot be subjected to the interests and security of its forces. The prohibited acts include: torture, willful killing, and population transfer.

In February 1999, the UNGA repeated its previous recommendation that the HCP convene a conference to investigate measures to enforce the Convention in the OPT, as a step towards fulfilling their obligations. The UNGA went as far as to set the date for the conference to be convened, 15 July 1999. Furthermore, the UNGA authorized the Swiss government, as the depositary of the Convention, to take the preparatory measures for the convening of the conference. However, it is our view that the measures taken by Switzerland did not contribute effectively and honestly to the convening of a real conference as recommended by the United Nations. At the same time pressure continued to be applied by America on the international community in order to impede the convening of the conference.

This recommendation by the UNGA that the HCPs convene a conference to investigate measures to ensure respect of one of the Geneva Conventions in a specific situation has no precedent. It is the first such recommendation since the signing of the Geneva Conventions in 1949. PCHR and other human rights organizations have given priority in their activities to ensuring that the conference would be convened at the specified time and for the goals identified by the UNGA. The conference was, in fact, convened on 15 July 1999, and lasted for less than 30 minutes. A very brief statement by the HCPs was issued. As such the conference was a great disappointment to PCHR and other parties concerned with the status of international humanitarian law, it is our view that conference made no real attempt to meet the goals identified by the UNGA resolutions.

At the time of the HCPs conference, PCHR and LAW organized a parallel meeting of human rights organizations, activists and experts in international humanitarian law. They joined together to lobby the HCPs to hold a meaningful conference intended to meet the substantive issues addressed by the UNGA resolutions.

The manner in which the conference was convened represented a politicization of international law and the Fourth Geneva Convention itself, and reflected a blatant disregard for the central purposes of humanitarian law. As such, it was a gift to the occupying power, difficult to reconcile with the gravity of its crimes in the OPT. The parties failed to address measures to fulfil their legal obligations, which in turn contributed to the continuation of human rights violations in the OPT.

These continuing human rights violations pose a threat to international peace and security and clearly will not further the peace process. It is therefore particularly ironic that key amongst the justifications offered by HCPs for both postponing the conference in the first place, and adjourning it without substantive investigation of measures of enforcement in the second, was a concern to support the peace process. Thus we find ourselves once again repeating the axiom that a real, lasting and just peace is not incompatible with, but rather dependent upon on, respect for human rights, and the rules of international law.

This publication brings together documentation of developments in the previous two years, including all developments regarding the convening of the conference, the activities of PCHR in this regard, and other relevant documents. In publishing this volume, PCHR has two main goals, firstly to bring together in one place the relevant documents in order to increase awareness of the issue in a manner which is easily accessible and clear, and to document this important case for future reference.

PCHR would like to make it clear that this issue is far from closed. The objective of the Centre’s work will continue to be putting an end to Israeli violations of human rights in the OPT, through, amongst other things, lobbying the HCPs to fulfil their legal obligations under the Convention and in accordance with the UNGA resolutions. One aspect of which will be to encourage the HCPs to reconvene the conference, and this time to seriously investigate measures available to them to meet their obligations under the Convention and to ensure respect of the Convention in the OPT.

The Legal Status of the OPT

The Israeli occupation forces occupied the Gaza Strip and the West Bank, including East Jerusalem, in 1967 in an offensive war that was launched against the neighboring Arab countries. Israeli military government was imposed over the land and the population. Since its occupation, the Israeli government has refused to recognize the Palestinian territory as an occupied territory, its forces as a belligerent occupation force, or the applicability of the Fourth Geneva Convention to the territory. On the contrary, since 1967, the Israeli belligerent occupation power has systematically violated the provisions of the Convention. The Israeli government continues to pursue such policies, despite the international community’s affirmation of the de jure applicability of the Convention to the OPT.

The Israeli government bases its refusal to apply the Convention on invalid legal arguments. Amongst those arguments are, firstly that the definition of belligerent occupation is predicated upon the replacement of a legitimate government or sovereign power in the occupied territory. Since neither Jordan, nor Egypt, was the sovereign power in either the West Bank or Gaza Strip, Israel claims that a pre-requisite condition to constitute a belligerent occupation is absent, and consequently the Convention does not apply. Therefore the legal status of Israeli presence in the OPT is claimed to be administration, and not occupation.

This argument by the Israeli government implies intentional false interpretation of the Geneva Convention that the applicability of the Convention is conditional on the territory being taken from the legitimate sovereign power. The argument has no customary or conventional legal basis. Article 1 of the Convention provides that the Convention applies, and should be respected in all circumstances, regardless of how the territory is taken, whether from a legitimate or illegitimate government, in a declared or undeclared war, or whether occupied partially or totally. The aim of the Convention is to provide protection for civilian persons in times of war and in occupied territories.

Secondly, the Israeli government claims that the territories of the West Bank and the Gaza Strip were captured by it as a result of a defensive war, and in order for the Convention to apply, the territory must be occupied in an offensive war. According to Israel, these conditions have not been met, therefore the Convention does not apply. This argument is defeated by the same provision in Article 1 highlighted above. Furthermore, Article 2 provides that the Convention is applicable regardless of the circumstances resulting in the state of occupation. Moreover, the Israeli arguments are contrary to international law, which renders illegal the acquisition of land by force, and to the provisions of the Charter of the United Nations.

In addition, the Israeli government argues that the Israeli occupation, as a prolonged occupation is different from that covered by the Convention. Their argument is that the occupation is a unique, unprecedented situation and therefore the provisions of the Convention do not apply. Again this argument lacks any legal merit.

 

On the other hand the Israeli government claims that although the Convention does not apply de jure to the OPT, they will apply the humanitarian aspects of the Convention. The question arises, what humanitarian aspects of the convention are being applied? The whole of the Convention is humanitarian in its essence and purpose, and it would be impossible to single out a provision which is non humanitarian. Moreover, can the measures taken by Israel in the OPT, the ongoing violations of human rights and crimes against the Palestinian people, be described in any way as humanitarian? Is this the Israeli definition of humanitarian? There is overwhelming evidence that the Israeli belligerent occupation force is widely and systematically violating the provisions of the Convention, for example by administrative detention of Palestinians, torture, willful killing, confiscation of land, settlements, destruction of civilian property, separation of Palestinian families, denying family reunification, and impositions of restrictions of freedom of movement. Exactly which humanitarian aspects of the Convention can the Israeli government claim to apply?

 

 

The United Nations Resolutions to Convene a Conference of the HCP to the Fourth Geneva Convention

 

During the term of the Netanyahu government in Israel, the construction of Israeli settlements in the OPT, especially in East Jerusalem, intensified. The policy behind these measures, that is to uproot Palestinians from Jerusalem and to alter unilaterally the demographic nature of the city, was publicly avowed in governmental statements at the time. The establishment of a large new settlement in Jabil Abu Honam in Jerusalem attracted particularly extensive international attention and concern. The international community strongly condemned this action, and consequently the UNGA adopted a series of five resolutions (annexed to this publication).

 

In response to the deterioration of the human rights situation in the OPT, and Israel’s systematic violation of the provisions of the Fourth Geneva Convention, the resolutions reaffirmed that the Convention is de jure applicable in the OPT, and that Israel is a belligerent occupying power. Due to repeated Israeli refusals to respect the Convention, the UNGA recommended that the HCPs to the Convention fulfil their legal obligations under Article 1 to ensure the respect of the Convention in all circumstances.

 

The UNGA’s recommendation to convene a conference of the HCPs, in order to investigate measures to enforce the Convention in the OPT, is of the utmost importance. The UNGA asked the Swiss government (as the depositary of the Convention) to take the necessary steps to convene such a conference, including the possibility of convening a Meeting of Experts to prepare for the Conference. The UNGA also recommended that the Palestine Liberation Organization (PLO) be invited to the Conference, and participate in the preparatory measures. In the last of resolutions, the UNGA proposed 15 July 1999 as the date for the convening of the conference.

 

The Preparatory Steps taken by Swiss Government

 

1. The Quadrilateral Meeting

 

The Swiss government invited the PLO and the government of Israel to a quadrilateral meeting that was also attended by the Swiss government and the International Committee of the Red Cross (ICRC). The aim of this meeting was to investigate measures of applying the Convention in general, and not specifically to the OPT. The proposed agenda for the meeting undermined the letter and spirit of the relevant UN resolutions. In response PCHR conducted a series of meetings and activities that culminated in the convening of a Meeting of Experts at its Centre in Gaza City between 8-9 August 1998. The meeting was attended by a number of academics and experts who provided legal advice on a number of basic issues relevant to the UNGA recommendation to convene a conference of the HCPs. The meeting also addressed the measures taken so far by the Swiss government, especially the convening of the quadrilateral meeting.

 

The quadrilateral meeting took place in Geneva between 9-11 June 1998. PCHR expressed its deep concern about this meeting and issued a statement setting out the potential weaknesses of such a meeting. It was PCHR’s view that the quadrilateral meeting overstepped the limits of the Swiss government’s authorization under the UNGA resolutions. The UNGA resolutions give authority to the Swiss government to take the necessary preparatory measures to convene the conference of the HCP. This quadrilateral meeting falls, in our view, outside any good faith definition of such necessary measures. The meeting in itself tended to return the issue to the domain of Israeli-Palestinian negotiations (albeit with the presence of Switzerland and the ICRC), an approach which is not consistent with the Convention, and which in any case was clearly failing in the peace process in general. Furthermore the UNGA resolutions stress the responsibility of the HCPs to ensure the respect of the Convention, and its provisions by the Israeli belligerent occupation.

 

2. Proposal for Mechanism

 

The Swiss government put forward a “proposal for mechanism to apply the convention in the OPT”. The proposal in fact went no further, however it did cause concern to PCHR and other interested parties. In our view, if it was to be adopted, the proposed mechanism would tend to preserve the existing illegal status quo in the OPT. Furthermore, the Swiss government had been authorized to take steps to prepare for the conference. A proposal for a mechanism of this kind is beyond the scope of this role.

 

3. Expert Meeting

 

In a new development, the Swiss government invited the PLO and the Israeli government to participate in an expert meeting from 27 to 29 October 1998. This meeting took place in Geneva and was attended by representatives of the HCPs, the PLO, and the Israeli government. The meeting was dedicated to addressing the problems related to the application of the Convention in general, as well as to promote dialogue between the participants. It was not part of the mandate of the meeting to investigate the application of the Convention in a specific case, namely the case of the OPT. The deletion of the OPT from the agenda of the meeting should be seen as an intentional move to sidestep the UNGA resolutions and to obstruct the convening of a real conference of the HCPs.

 

Prior to the expert meeting, PCHR issued another statement that addressed the agenda of the meeting on 18 Oct 1998. The statement set out PCHR’s position on the potential dangers of the meeting, especially as the invitation stated that the meeting would not focus on the OPT. PCHR sent letters, along with the statement, to Mr. Koffi Anan, the UN Secretary General and Mrs. Mary Robinson, the UN High Commissioner for Human Rights. In the letters, PCHR urged the above UN representatives to make every possible effort to ensure the honest application of the letter and spirit of the UNGA resolutions.

 

The High Commissioner was invited as an observer to the Meeting of Experts. Mrs. Robinson’s representative read her statement, which was to a great extent in line with PCHR’s concerns. Her statement reiterated the necessity for respect of the Fourth Geneva Convention, the honest enforcement of the UNGA Resolutions, the need for an immediate effort to put an end to the violations of the provisions of the Convention, and the need to activate the mechanisms of the Fourth Geneva Convention. The statement of the High Commissioner repeated the demands of PCHR, that is to respect the standards and rules of international law without politicization, and to put an immediate end to the violations.

 

A letter sent by the Chair of the Meeting of Experts to Mrs. Robinson reflected the Swiss delegation’s reaction to Mrs. Robinson’s statement. This reaction strongly indicates, on the part of Switzerland, a lack of intention to abide by the spirit and letter of the UNGA resolutions. In her reply, Mrs. Robinson reaffirmed her earlier statement. She urged for harmony with the UNGA resolutions, and that the goals and purpose of the Meeting of Experts should specifically address the OPT.

 

The convening of a conference of the HCPs remains a central Palestinian demand, since such a conference has the potential to serve as a very important mechanism to address ongoing Israeli violations of the Fourth Geneva Convention in the OPT.

 

The convening of a conference of HCPs to investigate measures to enforce the Geneva Convention in a particular situation is unprecedented, and this may explain some degree of caution on the part of the HCPs. However, there can be no question as to the purpose of the Convention, the protection of civilian persons under occupation, and the Convention is clear in setting out the obligations of HCPs to ensure this protection. Any mechanism pursued by the HCPs, including the convening of this conference must be consistent both with the purpose of the Convention and with the obligations of the HCPs.

 

In this regard, states are free concerning how they fulfill their legal obligations, as long as the measures they undertake do not undermine these obligations. PCHR’s concern throughout this process, therefore, was that the convening of the conference was precedent setting, and it was hence of utmost importance that it be done in a manner which did not undermine the overall purpose of the Convention.

 

International Campaign for the Implementation of the Convention in the OPT

 

After the adoption of the relevant resolutions in 1998 by the UNGA, PCHR launched its campaign to highlight the importance of those resolutions and to demand the convening of the conference of the HCPs. It was the view of PCHR that the preparatory steps were not in harmony with the intention of the UNGA resolutions, nor with the spirit and purpose of the Convention. PCHR and other human rights organizations were, consequently, greatly concerned with this matter.

 

The aim of the International Campaign for the Implementation of the Convention in the OPT was to ensure that the conference would be convened at the specified date, and for the purposes specified by the UNGA. At that time only three months remained before the date set for the conference. Therefore, it was imperative to recruit all efforts locally, regionally and internationally to secure the convening of the conference. The international response to this campaign reinforced PCHR’s view that the importance of this conference was not restricted to the OPT, but was widely considered to be a significant development in the practice of humanitarian law with global implications. The significance lies in the fact that the convening of the conference sets a precedent in state practice in relation to the Geneva Conventions in general and therefore has implications for all situations of conflict and occupation to which the Conventions apply.

 

On 6 April 1999, PCHR organized a preparatory meeting for the campaign, to coincide with the meetings of the UN Commission on Human Rights in Geneva. The meeting was initiated by the PCHR in association with other Palestinian human rights organizations. A number of local, regional and international human rights organizations, as well as human rights experts and activists, were invited to attend the preparatory meeting. PCHR presented a draft working paper discussing the available practical measures that could be used by the HCP to ensure respect of the Convention in the OPT. These include political, legal, diplomatic and economic measures. In other words the paper was an attempt to translate the legal obligations under the Article 1 of the Convention into practical actions that might be taken to ensure that the belligerent occupation power respect the provisions of the Convention.

 

Participants adopted a position paper that in turn became the basis for launching the International Campaign for the Implementation of the Convention in the OPT, and the basis for addressing the HCPs. A copy of the position paper and a list of the participants are annexed to this publication.

 

The participants emphasized that the implementation of the Convention is the minimum requirement for the protection of civilians. They also stressed that a conference on 15 July 1999, which respects the provisions of the General Assembly resolutions, would be an essential contribution to achieving a comprehensive, just and lasting peace between Palestine and Israel. The participants identified the following three categories that merit action by the HCPs. They stressed that practical measures should be adopted during the HCP conference to address these categories in order to ensure full implementation of the Convention:

 

1. Grave breaches of the Convention

 

Grave breaches of the Convention, such as torture, inhuman treatment, and taking of hostages, constitute war crimes. The HCPs are under a legal obligation, in accordance with Article 146 of the Convention, to search for persons alleged to have committed or to have ordered to be committed such grave breaches and to bring them, regardless of their nationality, before their own courts. Specific measures should be taken to ensure that this obligation is fulfilled.

 

2. Other breaches of the Convention

 

Other serious breaches of the Convention include the establishment of Israeli settlements in the OPT, including Jerusalem. The establishment of settlements is illegal according to Article 49 of the Convention, as has been repeatedly confirmed by UN resolutions.

 

3. Unilateral measures to change the status of parts of the occupied territory

 

Unilateral measures to change the status of parts of the occupied territory, including de jure and de facto annexation, are illegal according to the Convention. The HCPs should not take measures that will lead to such illegality.

 

The participants urged the HCPs to focus the agenda of the conference on specific measures to be adopted to stop the above-mentioned breaches. The overall objective of the conference must be to ensure respect of the Convention. In this regard, reference was made to the decision by the European Commission, recommending that its Member States do not import goods produced in the Israeli settlements. The participants looked forward to the HCPs adopting similar constructive measures at the Conference. In so doing, the HCPs would contribute to removing a serious obstacle in the way of true conciliation between Israelis and Palestinians.

 

 

The Meeting of the Euro-Mediterranean NGO’s Network

 

As part of the continuing work of PCHR to ensure the implementation of the Convention in the OPT, PCHR participated in the meeting of the Euro-Mediterranean NGO Network which took place in Stuttgart, Germany on 14 April 1999. The participants discussed the issue of Israeli violations of the Convention in the OPT and the preparatory measures that had been taken to convene the conference of HCPs. The position paper of the International Campaign for the Implementation of the Convention was signed by fifty-one NGOs (including B’tselem, an Israeli human rights organization). These regional and international organizations agreed to participate in the campaign by raising awareness of the issue in the countries where they operate and by lobbying their governments to ensure that the conference would convene on the specified date, and under the agenda defined by the UNGA.

 

 

The First Conference of the Arab Human Rights Movement (Casablanca)

 

The first meeting of the Arab Human Rights Movement was held in Casablanca, Morocco between 23-25 April 1999. The meeting was organized by the Cairo Centre for Human Rights Studies in cooperation with the Moroccan Organization for Human Rights. Most Arab human rights organizations as well as a number of human rights experts and activists attended the meeting. The developments regarding the convening of the conference of HCPs was a matter of great concern for the participants. One of the sessions was allocated to this subject, and to investigating the role of Arab human rights organizations in the International Campaign for the Implementation of the Convention in the OPT. The meeting adopted the Casablanca Declaration, which declared the following.

 

“The rights of the Palestinian people are the proper standard to measure the consistency of international positions towards a just peace and human rights. The Arab human rights movement will apply this standard in its relations with the different international organizations and actors.

 

The Conference declares its full support for the right of the Palestinian people to self-determination and to establish their independent state on their occupied national soil – with Jerusalem as its capital -, and the rights of return for the refugees and to compensation in accordance with UN resolutions. The Conference demands the dismantling of settlements, the elimination of all forms of racial discrimination and human rights violations against the Arabs of Israel, and the elimination of the racist, Zionist and expansionist nature of Israel.

 

The establishment of a just peace requires the immediate and unconditional withdrawal of Israel from the Golan Heights and South Lebanon in accordance with UN Security Council resolutions.

 

Meanwhile, the Conference calls upon the Contracting Parties of the Fourth Geneva Convention on the Protection of Civilian Persons in Times of War to fulfill their legal obligations, and to work towards compelling the Israeli occupation forces to apply the provisions of the Convention, considering that these provisions constitute the minimum standards required for the protection and safety of Palestinian civilians. In this regard, the Conference affirmed that it is necessary that the HCPs comply with the UN General Assembly resolution to hold a special conference of the HCPs on July 15th 1999, to examine measures required for the enforcement of the provisions of the Convention in the occupied territories. The Conference also called upon international and Arab organizations to join the international campaign to urge the HCPs of the Fourth Geneva Convention to work towards enforcing its provisions in the occupied territories.

 

The Conference values the positions of organizations and states in support of the rights of the Palestinian people, and the position of the European Union among them – especially the EU’s refusal to recognize the Israeli stance on Jerusalem. The Conference also hails the European Commission’s recommendation to embargo the goods produced in the settlements, and calls upon all states to adopt similar positions.”

 

 

Meeting of Afro-Asian People’s Solidarity Organization (AAPSO)

 

The Afro-Asian People’s Solidarity Organization organized a meeting to follow up the UNGA resolutions regarding the convening of a Conference of the HCP. The meeting was held in Cairo, Egypt on 5 June 1999. AAPSO established a permanent coordination committee to follow up the implementation of the UN resolutions regarding Palestine. The meeting was attended by a number of experts, representatives of the Arab League, as well as representatives of NGOs, among them PCHR. PCHR’s representative briefed the meeting about the ongoing process. Participants in the meeting agreed:

 

To lobby and pressure HCPs and the Swiss government to convene the conference on the specified date.

 

To provide the concerned parties with research, studies and suggestions about the mechanisms and measures by which Israel’s respect for the Convention could be ensured.

 

To demand that the conference of the HCPs should result in undertaking specific measures to ensure Israel’s respect.

 

The United Nations International Meeting on the Convening of the Conference on Measures to Enforce the Fourth Geneva Convention in the Occupied Palestinian Territory, Including Jerusalem. “The Cairo Meeting”

 

The United Nations Committee on the Inalienable Rights of the Palestinian People held a meeting in Cairo, Egypt on 14-15 June 1999. This meeting was attended by government representatives, UN specialized agencies, the ICRC, NGOs, and international law experts, PCHR, LAW, and Al Haq. The aim of the meeting was to discuss different aspects related to the implementation of the Convention in the OPT, including Jerusalem, and the expected outcomes of the conference of the HCPs.

 

The participants adopted a final document, which stated that Israel continues to commit flagrant violations of the basic human rights of the Palestinian people as well as their rights as protected persons under the Israeli occupation. The participants expressed serious concern with regard to grave breaches, and other violations of the Fourth Geneva Convention by Israel. They include arbitrary detention, ill-treatment of and violence against the civilian population, torture, summary execution, confiscation and destruction of property, forcible transfers and deportations, and various forms of collective punishment, as well as the destruction of economic and social structures of the Occupied Territory.

 

The participants expressed their utmost concern at ongoing and escalating settlement activities, which include illegal land confiscation, and transfer of Israeli civilians to the Occupied Palestinian Territory, including Jerusalem, in violation of Article 49 of the Fourth Geneva Convention. Article 49 provides that the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies. This policy aimed at expansion and annexation, apart from being illegal, was deemed by the participants to be detrimental to the peace process.

 

The participants appealed to all the HCPs to the Fourth Geneva Convention to fulfil their obligations in accordance with common Article 1, which requires the HCPs to respect, and ensure respect for the Convention in all circumstances.

 

The participants expressed their hope that the HCPs would take, individually or collectively, the measures they deemed appropriate to ensure respect of the Convention.

 

The American Role in Undermining the Convening of the Conference

 

At the time of the UNGA adoption of the resolution on ‘Illegal Israeli Actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory’ on 9 February 1999, the United States Mission to the United Nations released a statement declaring their intention to vote against the resolution, and urging others to do the same.

 

“The resolution’s call for a meeting of all the HCPs to the Fourth Geneva Convention to ‘enforce’ the Convention in the occupied territories will only serve to damage the climate necessary for productive and ultimately successful negotiations. The language of this resolution and its proposed steps prejudge negotiations on permanent status issues and hamper the chances for eventually achieving the goal of peace shared by us all.

 

We remain deeply concerned that this resolution, like similar ones in the past, constitutes an unacceptable assault on the basic uses and meaning of the Fourth Geneva Convention.

 

This resolution is another step towards politicizing that noble Convention, which is fundamentally humanitarian in nature. It demeans the Convention to use it as a vehicle to drive the political agendas of parties to a negotiating process.”

 

Since the UNGA adoption of resolutions regarding convening the conference of HCPs, the United States not only declared that it would not attend the Conference, but also insisted on urging other countries to boycott it. This policy of obstruction was pursued from the highest levels of officials in the United States administration. For example, Vice President Al Gore in his statement to the largest Jewish American organization, AIPAC, on 23 May 1999 said:

 

“I am proud to tell you that we will work diligently to halt the meeting of the Fourth Geneva Convention proposed for July 15. This conference is a badly disguised attempt to single out Israel for criticism. If this conference takes place, it will do so in spite of our objections and without our participation. America will boycott it, and we will urge others to do the same.”

 

Amongst those countries that bowed to American/Israeli pressure and agreed to boycott the Conference were Australia and Canada, contrary to the will of the international community as expressed through the UNGA resolutions, as well as to their obligations under Article 1 of the Convention. The declared empty seat policy is an intentional undermining of the will of the international community and represents a politicization of international law, and as such endangers international peace and security.

 

These countries attempted to justify their boycotting of the Conference on the pretext of ‘giving peace a chance’ and as a goodwill gesture to the new Israeli government. This policy is in fact undermining the peace process, which can only proceed on the basis of international human rights and humanitarian law. The convening of this conference provides an excellent opportunity to push the peace process forward and for the new Israeli government to demonstrate a genuine desire to do so whilst respecting international law.

 

The Conference of the HCP

 

Until late on 14 July 1999, it was not certain that the conference would convene on the following day. The corridors of the United Nations in Geneva carried a scene of intense diplomatic activities, as the European Union and the United States applied great pressure on the Palestinian Authority (PA), along with a number of other governments to hold a superficial conference that would not meet Palestinian expectations.

 

The position taken by the states of the European Union, while voting in favor of the UNGA resolutions without any reservation, shifted in response to American pressure leading up to the conference. The position taken at, and in the days immediately preceding, the conference, was not consistent with the position taken by these states in voting for a resolution calling for a real, substantive conference to investigate measures to enforce the Convention in the OPT.

 

The conference eventually took place in the United Nations Headquarters in Geneva on 15 July 1999. NGOs were not only prevented from attending this conference, but were also denied access to the Headquarters building. The conference was extremely disappointing as it adjourned after less than half an hour. A brief statement, which had been prepared in advance was released. The statement reaffirmed the applicability of the Convention in the OPT, including East Jerusalem, as well as the need for the full respect of all of its provisions and went on to say that:

 

“Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.”

 

It seems that had the states of the European Union not insisted on holding at least this superficial conference, the conference would have not been convened at all, but rather postponed. The possibility of not holding the conference at all was rejected by the PA as well as international and local human rights organizations.

 

The aim of the conference as defined by the UNGA was to investigate measures for enforcing the Convention in the OPT, so that the States would fulfil their legal obligations under the Convention. However, the conference did not address any measures for the enforcement of the Convention or for the halting of Israeli violations in the OPT. Unfortunately, due to the current state of the human rights situation in the OPT, as well as the systematic violations of the Convention, especially the escalation of settlements in the OPT including Jerusalem, actions to enforce the Convention are needed more than ever before.

 

The released statement indicated that the HCPs understood that the conference would convene again based on consultations regarding developments in the humanitarian situation on the ground. In fact, ample documentation of Israeli violations of the Convention, and of the suffering of the Palestinian people in the OPT is already available to the HCPs.

 

The position of the PLO and the PNA regarding the convening of a conference is similar to that of Palestinian human rights organizations on the other. However, strong American and European pressure on the PNA resulted in its eventual acceptance of the conference in the format that it was held. Although the resulting conference was not acceptable, the PNA faced great deal of pressure from all sides to agree to this format.

 

 

The Parallel Meeting of Human Rights Organizations

 

To ensure that the conference would meet at the specified time and on the basis of a clear agenda to investigate measures to enforce the Convention in the OPT, PCHR and LAW organized a parallel meeting in which more than 38 human rights organizations and activists participated. The parallel meeting was held to follow the proceedings of the conference of the HCPs, and to lobby the HCPs to fulfil their legal obligations. The meeting was planned to take place at the UN Headquarters in Geneva alongside the HCP conference. However, this was not possible as NGOs were prevented from entering the UN buildings. Therefore, the parallel meeting took place in a conference center in Geneva between 14-15 July 1999.

 

Mr. Nasser El Qidwa, the Palestinian Ambassador to the United Nations, briefed the participants on the consultations regarding the convening of the conference, particularly the pressure exerted on the PLO by US representatives not to hold the conference at all and by European representatives to accept holding a conference of greatly reduced scope. Mr. Fux, from the Swiss Ministry of Foreign Affairs, and a member of the Swiss delegation to the conference, also addressed the participants regarding the conference.

 

On 14 July 1999, the participants of the parallel meeting issued a statement reaffirming that there was consensus amongst the HCPs, except Israel, that the Convention is de jure applicable to the OPT including Jerusalem. They also stated that the conference provided an opportunity for the HCPs to fulfill their obligations under Article 1 of the Convention.

 

The participants expressed their regret that the steps taken following the UNGA’s calls for enforcement measures had been undermined by the fact that some HCPs gave priority to political negotiations between the parties to the conflict, over international law. The fulfillment by the international community of its legal obligations must not be subordinated to the desire to promote political negotiations. The pursuit of a durable peace requires respect for international human rights and humanitarian law.

 

Follow-up

 

The aims of PCHR and other Palestinian, regional and international human rights organizations remain the respect of international humanitarian law, and the achievement of a just and lasting solution to the Israeli-Palestinian conflict. In this context they affirm that they will continue their efforts to end Israeli crimes in the OPT, and for the implementation of the Fourth Geneva Convention. They will continue to lobby the HCPs to fulfill their legal obligations. In this regard, the parallel meeting established a follow-up committee composed of a number of human rights organizations from different geographical regions. The mandate of the committee is to ensure the effectiveness of the activities taken by the member organizations in furtherance of these aims.

 

Petition to the High Contracting Parties.

 

On 15 July 2000, a year after the conference of High Contracting Parties was adjourned, the Palestinian Centre for Human Rights and LAW prepared a petition to be submitted to the High Contracting Parties. On the basis of the statement released by the HCPs at the conference on 15 July 1999, which said that the conference was adjourned “on the understanding that it will convene again in light of consultations on the development of the humanitarian situation in the field”. The petition sets out the ongoing Israeli violations of the Fourth Geneva Convention during the year. These included grave breaches such as unlawful killing, and torture and inhuman treatment, and other breaches including land confiscation, home demolitions, deportation and forcible transfer, deportation from Jerusalem, settlement expansion, forcible transfer of Palestinian prisoners to Israeli jails, and closure.

 

The second part of the petition analysed and outlined the legal obligations of the High Contracting Parties under the Convention, particularly under Article 1, as well as under Article 146. The petition concluded that;

 

“The reconvened conference represents the next step to be taken in a process of enforcement, which must continue until Israel continuously respects the Convention until the end of its occupation. Individual states must take measures, as set out above, that respect and ensure respect of the Fourth Geneva Convention, including not contributing to violations and Article 146 prosecution. This basic action toward securing compliance with the Fourth Geneva Convention should continue until the conference reconvenes.

 

However, the worsening humanitarian situation in the occupied Palestinian territory obliges the High Contracting Parties to reconvene the conference and agree upon further, more strenuous, action. This is the spirit of Article 1 of the Convention, and accords with the Statement of High Contracting Parties to “reconvene” the conference in the event of worsening humanitarian conditions.

 

The first half of this report has shown that the pattern of Israeli violations of the rights of the civilian Palestinian population, as protected by the Convention, has continued over the past year. The signatories to this petition, as protected persons, call on the High Contracting Parties to reconvene at their earliest opportunity and make preparations for implementing enforcement mechanisms in accordance with the Article 1 obligation.”

 

The petition was submitted to all the High Contracting Parties to the Convention, and was further circulated by LAW and PCHR to the PNA, and to local, regional and international human rights organisations. Furthermore, the petition was highlighted in press releases by LAW and PCHR, urging all parties concerned with respect for humanitarian law to contact and lobby their governments to reconvene the conference, and to take further measures to ensure Israel’s respect of the Convention in the occupied Palestinian territory. The full petition is annexed.

 

 

Palestinian Centre for Human Rights’ Press Releases Relevant to 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 Syria’s Golan Heights, declaring both to be Israeli territory and subject to Israeli rule. In 1979, the Egyptian government and the Israeli government signed the Camp David Accords, which ended the Israeli occupation of the Sinai Peninsula, returned control to Egypt. Complete authority over the Sinai was returned to Egypt in 1982. The other territories, however, remain occupied by Israeli military forces.

 

Soon after it occupied the West Bank and the Gaza Strip the Israeli occupying forces imposed military, legal, and administrative control over them through orders and regulations issued by the Israeli military commanders of the regions. Since that time, the international community, consisting of both governments and international organizations, especially the United Nations and the International Committee of the Red Cross (ICRC), has regarded the territories of Palestine as territories subjected to occupation by the military of a belligerent foreign power. The IVth Geneva Convention of 1949, relative to the protection of civilian persons in times of war, is therefore applicable de jure, legally obliging the Israeli occupying forces to apply its provisions and provide for the protection of civilian persons.

 

Immediately after occupying the West Bank and the Gaza Strip, the Israeli military commanders of each region issued similar pronouncements accepting the applicability of the IVth Geneva Convention to the two territories. Three months later, however, the two commanders modified their positions to reflect a rejection of the applicability of the convention to the regions. Since that time the Israel government has refused to recognize Palestinian territories as occupied territories, or Israel as a belligerent occupying power, consequently denying the applicability of the IVth Geneva Convention. Israeli attempts at justifying this position have been inadequate, especially the claim that the convention does not apply because the territories were seized in a defensive war. Yet, as stated in article one of the convention, the nature of the conflict is irrelevant. Moreover, as stated in article two, it should apply in all total or partial states of occupation regardless of how, where, and when the occupation occurred. Thus Israeli actions violate the rules of international law, especially the provisions of the United Nations Charter, by assuming that there is a difference between a defensive and an offensive war. The Israeli claim that it seized control of the territories from governments that were not granted legitimate authority, thereby nullifying the applicability of the IVth Geneva Convention, is likewise invalid. The convention applies in all circumstances and does not deal with the nature of governments prior to occupation. Israeli claims, therefore, do not stand up to legal scrutiny. It is not surprising then that Israel is alone in rejecting the applicability of the IVth Geneva Convention to the occupied territories.

 

The Israeli government, as well as the Israeli High Court, the highest judicial body in Israel, claimed that while the convention is not applicable de jure, the Israeli government will apply the humanitarian aspects of the convention de facto. It is important to note, however, that the application of the humanitarian aspects of the agreement, as defined by the Israeli government and the High Court, resulted in the legalization of torture against Palestinians (which caused numerous deaths), land confiscation, and Jewish settlements on Palestinian lands. It also led to the willful killing of Palestinians, house demolitions, the exile of vast numbers of Palestinians from their homes, and other forms of oppression. This raises the question of which humanitarian aspects the Israeli government is talking about, assuming that indeed there exists within the convention, a pillar of international law, both humanitarian and non-humanitarian provisions.

 

Palestinians Demands from the High Contracting Parties

 

As a result of Israel’s refusal to apply de jure the provisions of the convention and Israel’s systematic violations, Palestinians have demanded that the High Contracting Parties fulfill their legal obligations under the convention. Article one states, “The High Contracting Parties undertake to respect and to ensure respect for the present convention in all circumstances.” The HCP’s, therefore, are not only obliged to respect the convention, but must also ensure that it is respected by any other contracting party who might attempt to violate its provisions. Consequently, Palestinian demands focused on insuring the applicability of the convention to the occupied territories of Palestine and providing for the protection of Palestinian persons as mandated by the convention.

 

Political Developments and the legal Status of the Palestinian Territories

 

On the 13th of September 1993 the PLO, on behalf of the Palestinian people, and the Israeli government signed the Declaration of Principles (The Oslo Accord), which was followed by a number of other agreements. The Cairo Agreement, which was signed on the 4th of May 1994, established the Palestinian National Authority (PNA) to exercise the duties of government in the West Bank and The Gaza Strip. The agreement, however, denied the PNA authority over security and foreign relations for a period of five years from the signing of the agreement. During that time, the agreement stipulated, Israel’s occupying forces would continue to exercise control in these matters. New political developments, particularly the signing of the aforementioned agreement, have opened the door once again for discussion of the legal status of the occupied Palestinian territories and the applicability of the IVth Geneva Convention to those territories. Several key points to this discussion follow.

 

First, the IVth Geneva Convention in principle does not oppose the right of High Contracting Parties to conclude an agreement with an occupying power unless, as stated in article seven, the agreement adversely affects the situation of protected persons as defined by the convention, or restricts the rights it confers upon them. The convention goes on to stress this legal point by refusing to sanction under any circumstances the deprivation of protected persons who exist in an occupied territory of the benefits of the convention as a result of any concluded agreement between the authorities of the occupied territory and the occupying power. Article 47 states: “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the occupying power, nor by any annexation by the latter of the whole or part of the occupied territory.” Undoubtedly, the PLO, from a legal point of view, serves as the representative body of the occupied territories (their sole representative) and consequently has the right to conclude agreements (The Oslo Accord, for example) with the occupying power (the Israeli government). The previously cited articles support this right so long as the concluded agreement does not encompass any provision that could undermine or prejudice the rights granted to Palestinian 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 Israel’s continuous control over security issues. Further significant is the preservation of Israeli military orders, which overstep the boundaries of legitimate authority granted to an occupying power as stated in article 64 of the IVth Geneva Convention, and the Israeli insistence that East Jerusalem belongs to Israel before final status negotiations have even begun. These facts and practices on the ground make it clear that the Israeli occupation continues to exist, which means that the convention continues to be de jure applicable.

 

Second, according to the concluded agreements between the PLO and the government of Israel, the Israeli government will preserve and perform the authorities of government, especially in those areas that are not yet under Palestinian jurisdiction. In this regard Israel will continue to be a belligerent occupying power obliged to apply de jure the provisions of the IVth Geneva Convention, at least in those areas over which it still has jurisdiction and through which it performs the functions of government. In this role, Israel continues to have a direct impact on the economic, social, legal, health, and educational aspects of Palestinian civilian life. Article 6 of the IVth Geneva Convention states that the occupying power is obliged by the core of the provisions “to the extent that such power exercises the functions of government in such territory.”

 

The invitation of the United Nations General Assembly (UN General Assembly) to the High Contracting Parties and the Following Developments

 

In a significant development and a late response to the Palestinian demands the UN General Assembly adopted resolutions RES-10/2,RES-10/3,RES10/4,and RES10/5, which once again defined Israel as a belligerent occupying power gravely violating the provisions of the IVth Geneva Convention through its legal and administrative practices and measures. They also stated that the IVth Geneva Convention is de jure applicable to the occupied Palestinian territories, including East Jerusalem and the rest of the Arab territories under Israeli military occupation. As a result of Israel’s continuous refusal to fulfill its legal obligations under the convention, the UN General Assembly has asked the HCP’s to the IVth Geneva Convention to convene a conference regarding the applicability of the Convention to the occupied Palestinian territories, including Jerusalem. This conference would also aim to ensure that the HCP’s respect their obligations under article one of the convention. The UN General Assembly also asked the government of Switzerland, as a depository of the convention, to take the necessary steps to convene a meeting of experts to determine how best to follow the recommendations stated in resolution RES-10/4. This meeting should occur as soon as possible, and no later than the end of February 1998. The UN General Assembly also has asked the Swiss government to invite the PLO to participate in the conference and any preliminary steps related to the conference. The Swiss government contacted the HCP’s and the PLO, but failed to convene the meeting because, as claimed by the Swiss government, consensus was not reached by the HCP,s. It was very clear that both the Israeli and United States governments wanted to avoid such a conference at all costs, claiming that the conference would prejudice the peace process between the PLO and the government of Israel. The government of Switzerland supported this stance, and avoided implementing the resolution under the force of American and Israeli pressure

 

These contacts with the concerned parties resulted in the following events:

 

First, on the 29th of April 1998, a meeting took place in Bern between representatives of the Swiss government and the Palestinian authority for the purpose of exchanging views on a Swiss proposal to convene a quadrilateral meeting. This meeting, which would simultaneously be a meeting of experts, would include the PLO, the Israeli government, the Swiss government (as the depository of the convention), and the ICRC. Representatives of the PNA have affirmed that any such meeting should deal with the de jure applicability of the IVth Geneva Convention.

 

Second, on the 27th of May 1998 the Swiss government, through its representative office in Ramallah, sent to the PNA a draft of a proposal, titled “Diplomatic Note,” which outlined Swiss plans to implement the relevant resolutions. This proposal suggested a private, quadrilateral meeting (to be held between the 9th and 11th of June 1998) which would be aimed at “examining measures and mechanisms which contribute to the effective application of the IVth Geneva Convention in the Occupied Palestinian Territories.” The Swiss government considers its proposal for this meeting to be an appropriate step given its mandate from the UN General Assembly. In the next phase, states the proposal, a meeting of experts “should proceed to an analysis of the general problems concerning the IVth Geneva Convention and seek possible remedies which would contribute to the respect for the convention (in general, and in particular in occupied territories).” Clearly, the meeting is not intended to specifically address the applicability of the IVth Geneva Convention to the Palestinian Occupied Territories. The discussions would be informal and reflected in a report by the chairman.

 

Third, the PNA responded to that proposal, which contained prejudices in its formulation, in its treatment of the resolutions, and in its planned agenda. The Swiss government responded to the PNA’s comments by modifying some of the points within the proposal. The Swiss government, however, refused to acknowledge that the meetings should deal with the applicability of the IVth Geneva Convention to the Occupied Territories of Palestine.

 

The Swiss plan contradicts the letter and spirit of the relevant UN resolutions. The Swiss government is authorized to request that the HCP’s convene, however it is apparently no longer neutral and no longer committed to performing its legal duties. Its current actions seem guided by pressure from the United States and Israel, who have encouraged it to pressure the PNA to accept its proposals or else accept responsibility for the failure of the HCP’s to convene.

 

The Palestinian Center for Human Rights (PCHR) asserts the following points:

 

First, the UN General Assembly resolution calling for the HCP’s to convene in order to fulfill their obligations to apply de jure the convention to the Palestinian occupied territories is of utmost importance. Local and international human rights organizations have for many years asked the HCP’S to convene and ensure the applicability of the IVth Geneva Convention. A conference of the HCP’S would focus attention on Israel’s human rights violations and reaffirm the legal status of the Palestinian occupied territories as such. This designation must not cease until the Palestinian people achieve their legitimate rights, especially the right of self-determination.

 

Second, recent Swiss efforts have fallen well short of its UN General Assembly mandate. They contradict in letter and spirit the resolutions of the UN General Assembly, which called for a conference focusing on the obligations of the HCP’s to the Palestinian Occupied Territories, not a quadrilateral meeting that would divert attention from that focus. The issue raised is not a political one, but a legal one that demands that the HCP’s, 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 HCP’s. This resolution does not give it free reign to convene meetings which could prejudice participants in the conference proposed by the resolution. The drafters of the UN resolution, perhaps aware of the potential for the misuse of the Swiss mandate, mentioned only the possibility of convening a meeting of experts. Should the drafters have anticipated the need for other meetings, it is likely that they would have alluded to such meetings in the text of the resolution.

 

Third, the purpose of the quadrilateral meeting has been defined in the Swiss proposal as the examination of the application of the convention rather than the de jure applicability of the convention to the Occupied Territories of Palestine. There is a big difference between the two approaches. As mentioned earlier, Israel claims that it applies de facto the humanitarian aspects of the convention, which means that the examination will likely concentrate on how to improve the implementation of these aspects. This narrow focus, however, gave rise in the past to human rights violations (many of which we have mentioned) and grave breeches of the convention. This narrow focus also fails to recognize the applicability of the whole convention, which states clearly that the Palestinian territories are indeed occupied territories that should be recognized as such by the Israeli government. A broader focus that recognizes the applicability of the entire IVth Geneva Convention would allow examination to be concentrated on the mechanisms that provide protection for Palestinian civilians and other provisions that ensure respect for human rights.

 

Fourth, the potential danger of the quadrilateral meeting, and similar meetings, is that they would produce agreements that would prejudice the rules of international law. International law is the fundamental reference, and should be kept as the first and last reference in any case regarding the Palestinian Occupied Territories, especially now that we are approaching the final status negotiations between the PLO and the government of Israel. International law, which should be the reference point for the signed peace agreement between the two parties, has been ignored, resulting in a number of problems that risk the realization of Palestinian rights. Thus it is critical that international law be preserved by all parties. No concessions should be made in regard to legal issues under any circumstances.

 

PCHR also affirms the following:

 

First, PCHR reiterates its demand for an immediate conference of the HCP’S of the IVth Geneva Convention. This conference is essential for the HCP’s to fulfill their obligations to insuring the applicability of the convention to the Occupied Palestinian Territories. It is also essential to insuring that the Israeli occupying power respects the provisions of the convention. PCHR reaffirms the UN General Assembly resolutions and asks for their immediate enforcement in letter and spirit.

 

Second, any meeting that does not conform to the mandate authorized by the UN is an attempt to undermine the legitimacy of the fair demands of the Palestinian people, especially the applicability of the IVth Geneva Convention and the protection of Palestinian civilians in the occupied territories. The proposed quadrilateral meeting presents many potential dangers. It is another step towards deleting legal references and the rule of international law, which is the basic guarantee of the rights of the Palestinian people and universal respect for human rights.

 

Third, the continuation of the status quo without the conference of the HCP’s is preferred to a meeting of the kind proposed by the Swiss government. Such a meeting will undermine the Palestinian effort to convene a meeting of the HCP’s. In this regard we demand that the Swiss government prepare for the HCP’s to convene as stated in the UN resolution, and not prepare and participate in a meeting that is clearly a product of American and Israeli pressure. The Swiss government, as a depository of the convention, should honestly and fairly fulfill the mandate granted it by the UN.

 

Fourth, in light of these developments, PCHR calls for PLO and the PNA to continue pressing for the de jure applicability of the IVth Geneva Convention to the Occupied Territories, the recognition of the Palestinian territories as occupied territories, and the recognition of Israel as the belligerent occupying power.

 

Fifth, the conference of the HCP’s should occur in spite of Israeli and American refusals because each party of the HCP’s is legally obliged to ensure respect for the convention. The obligations under the IVth Geneva Convention are legal obligations, and like the conference of the HCP’s, must not be subject to political maneuvering. The law must be applied, states must respect their commitments. The conference should focus specifically on the Occupied Territories of Palestine, not on occupied territories in general.

 

 

PRESS RELEASE

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. PCHR’s 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 humanitarian aspects 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 PA’s 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

 

 

INTRODUCTORY REMARKS

 

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.

 

 

CONCLUSIONS

 

Responsibilities

 

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.

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.

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.

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 Israel’s persistent and systematic violations of Geneva IV and their damage to the ongoing peace process.

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.

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.

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).

Geneva IV does not provide for additional functions. In the event of any difference appearing between a State and a depository as to the latter’s 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 under 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.

 

 

RECOMMENDATIONS

 

 

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. 1997cannot 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 depository’s 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 October 1998 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

Possible solutions

Possible follow-ups

 

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 PCHR’s 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 Switzerland’s 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 Government’s 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).

2. 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.

3. 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:

 

1. One of the main criticisms of PCHR regarding the Palestinian participation, 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.

2. 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.

3. 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.

4. 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.”

5. PCHR is highly concerned about ICRC’s 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 ICRC’s current withdrawal from these meetings is appreciated, at the same time we demand that ICRC publicly clarifies its position regarding this matter.

 

 

Report on the UN resolution that recognizes the 15th July, 1999 as dead line for the convening of the conference of the HCPs to the IV Geneva Convention of 1949

 

 

Ref.,: 25/99

Date: 3rd March, 1999

 

On February 8, 1999 the UN General Assembly (UNGA) adopted Resolution A/RES/L.5/REV.1, which is of the utmost importance and is the last in a series of five resolutions adopted by the General Assembly addressing the continuing Israeli violations of human rights in the Occupied Palestinian Territories. The resolution pays special attention to the provisions of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War. These resolutions are A/RES/ES-10/2, ES-10/3, ES-10/4, and ES-10/5. As a result of the persistent Israeli violations of the provisions of the Convention, the General Assembly concluded that there should be a conference of the High Contracting Parties (HCPs) to the Convention in order for the parties to fulfill their obligations under Article I of the Convention. The resolution is meant to ensure that the rights of Palestinian civilians and their properties are granted the protection of the Convention. To achieve this end, the UNGA invited the HCPs to convene a conference to explore possible measures to implement the Convention in the Occupied Palestinian Territories in a de jure manner.

 

The General Assembly also authorized the Swiss government, as the depository of the Convention, to take the necessary preparatory measures to convene the intended conference. The new resolution affirms the following:

 

Israel continues to disregard UN resolutions and the rules of international law as well as the provisions of the Fourth Geneva Convention through its illegal policies and measures in Jerusalem and the rest of the Occupied Territories, especially in its settlement activity and the confiscation of Palestinian land;

In spite of the measures taken by the Swiss government, including the convening of a quadrilateral meeting on June 9-11, 1998 which encompassed representatives of the Israeli government, the Palestine Liberation Organization, the Swiss government, and the International Committee of the Red Cross (ICRC), in addition to the convening of an experts’ meeting in Geneva on October 27-29, 1998, Israel continues to violate the provisions of the Fourth Geneva Convention;

The United Nations is determined to continue its work to ensure that Israel, the occupying power, abides by the resolutions adopted at the 10th Emergency Special Session of the General Assembly;

All illegal actions taken by Israel in Jerusalem and the rest of the Occupied Palestinian Territories remain contrary to international law and cannot be recognized irrespective of the passage of time;

The UNGA reiterates its recommendation for the HCPs to the Convention to convene a conference on measures to enforce the Convention in the Occupied Palestinian Territories and to ensure respect for their obligations under Article I;

The UNGA recommends that the HCPs convene the said conference on July 15, 1999 at the UN office in Geneva;

7) The Swiss government, as the depository of the Convention, is invited to undertake whatever preparations are necessary prior to the conference; and 8) The UNGA expresses its confidence that Palestine, as a party directly concerned, will participate in the above-mentioned conference.

 

By adopting this resolution and setting July 15, 1999 as the deadline for the convening of the conference of the HCPs, the international community, through the United Nations, has taken an important step toward reaffirming the legal obligations of the HCPs and translating them into measures to enforce the Convention in the Occupied Palestinian Territories, including Jerusalem.

 

PCHR continues to closely follow all developments and accompanying measures to convene a conference of the HCPs. In November 1998, PCHR issued a study containing all the press releases, legal analytical reports, and relevant official documents related to the UN invitation to convene a conference of HCPs. The resulting Swiss performance is also included in the study.

 

Based on the importance of convening a conference of the HCPs in July 1999 and to ensuring its success in achieving the desired goal, the Palestinian Centre for Human Rights (PCHR) would like to clarify a handful of issues that should be taken with the utmost seriousness if the international community and the parties directly concerned are to enforce the Convention in a de jure manner, provide protection for Palestinian civilians and their properties, and preserve the legal status of the Palestinian territories as occupied territory.

 

Firstly, in spite of the UN determination to continue its work to enforce the Convention in the Occupied Palestinian Territories, the UNGA, which authorized the Swiss government to prepare for the conference of the HCPs and to take necessary measures to achieve that end, did not evaluate the steps taken so far by the Swiss government. In fact, the steps taken so far by the Swiss government, in its capacity as the depository of the Convention, have not been appropriate and have violated the letter and spirit of the earlier UNGA resolutions and the terms of their authorization. For example, such violations occurred when the Swiss government organized an experts’ meeting in Geneva on October 27-29, 1998. According to the UN resolutions, this meeting was intended to specifically address the case of the Occupied Palestinian Territories as a preparatory step for convening a conference of the HCPs to the Convention. Instead, the Swiss government invited experts to address problems

regarding the application of the Fourth Geneva Convention in general, and in particular in occupied territories, rather than specifically in the Occupied Palestinian Territories as called for in the UNGA resolutions. The Swiss government has done its best to make the application of the Convention an Israeli-Palestinian issue, which was not at all the aim of the UNGA resolutions. These resolutions had targeted the HCPs to fulfill their obligations rather than simply leaving it to Israeli and Palestinian negotiators. In this regard, the Swiss government organized a quadrilateral meeting encompassing the Israeli and Swiss governments, the PLO, and the ICRC, which did not contribute to achieving the goals of the UN resolutions.

 

Secondly, PCHR’s stand on this matter was similar to that of UN Commissioner for Human Rights Mary Robinson. Mrs. Robinson deserves respect and appreciation for her committed work on the part of human rights. The strength of her position was very clear in the speech delivered on her behalf at the aforementioned meeting of experts. She mentioned that UN resolutions were specifically related to the Occupied Palestinian Territories and that all UN treaty-monitoring bodies to date have determined the applicability of Israel’s de jure obligations to apply the human rights covenants and conventions in the Occupied Territories. In her moving speech she said, “When the subject of law is human dignity itself, time is of the essence. Where grave breaches are at issue, and lives at stake, delay is tantamount to complicity. Respect for human rights and the application of humanitarian law cannot, and must never be deferred in the name of political expediency.”

 

The Swiss government considered Mrs. Robinson’s speech to be in contradiction to the terms of reference of the meeting. Moreover, the representative of the Swiss government stated in a letter to Mrs. Robinson that the speech “was also at odds with the spirit that the Swiss authorities and I, in particular, were trying to breathe into the meeting, so as to avoid any prejudice to the integrity of international humanitarian law and thus, to the interest of the victims of violations of that law all over the world.” Mrs. Robinson rebutted that claim by saying that this meeting was taking place in the context of General Assembly resolutions. Her office could not have participated in such a meeting without underlining certain basic tenets contained in those resolutions.

 

Thirdly, the Israeli government rejected the UN resolutions, especially the last one, and declared its intention to boycott the conference of the HCPs. This stand was expected as the Israeli government has systematically refused to cooperate with the United Nations and its human rights and investigative bodies. Israel claimed in a statement by its ambassador to the United Nations that the call for a conference is “a vulgar distortion of international humanitarian law for the purpose of narrow political interests.” The ambassador also claimed that 97 percent of the Palestinian population of the West Bank and Gaza Strip live under Palestinian rule. Without over-elaborating on the ambassador’s false claims, it is clear that Israel, even after the establishment of the Palestinian Authority with its limited authority and jurisdiction, continues to be the belligerent occupying power and remains obliged to fulfill de jure the provisions of the Fourth Geneva Convention in the Occupied Palestinian Territories. Moreover, Palestinians (and their properties), even those under Palestinian jurisdiction, are subjected to systematic violations of their rights. Military orders enacted by the Israeli occupying force, by which it has controlled the West Bank and Gaza Strip since 1967, are still in force. These military orders result in confiscation of Palestinian land, establishment of Jewish settlements, demolition of Palestinian homes, deportation of Palestinians outside of their country, and other violations of basic rights upheld by international law.

 

In spite of the Israeli position, the convening of the conference of the HCPs to investigate measures to enforce the Convention by the parties themselves does not need the consent of Israel or even its presence. Whether Israel is present or not, this does not change the legitimacy of the conference. Indeed, if Israel fails to appear it could be argued that this would be to the benefit of the outcome of the conference based on the fact of Israeli enmity toward the international consensus. This should motivate the HCPs to do their utmost to fulfill their obligations by enforcing the UN resolutions and the provisions of the Convention.

 

Fourthly, in spite of the major development regarding the enforcement of the Convention that came with recognizing July 15, 1999 as the deadline for the convening of the conference, the General Assembly did not explicitly state which body – the United Nations or the Swiss government – would be responsible for inviting the parties to convene. This role should be claimed by the United Nations for itself, and be based on a definite and clear agenda that finally would contribute to the enforcement of UN resolutions.

 

Fifthly, undoubtedly the convening of the HCPs to the Fourth Geneva Convention of 1949 is unique and unprecedented in the history of the Convention. Since the adoption of the Convention in 1949 until today, the HCPs have never been asked to convene to investigate measures to enforce the provisions of the Convention in a specific case. This matter has important implications for the HCPs because whatever steps and measures are taken to enforce the Convention in the Occupied Palestinian Territories will determine its future applicability in other similar cases throughout the world. The outcome of the conference will constitute a precedent that either will promote the Convention or undermine it. The HCPs, while they are making the law in their scheduled conference, should fulfill all their legal obligations honestly and forthrightly in order to make the Convention fully capable of redressing the victims of occupations all over the world. The HCPs should not sacrifice human rights for the sake of narrow political interests and should not justify such actions on the basis of the ongoing peace process between the PLO and the government of Israel. This process, which is in a deadlock, has resulted in the continuation of grave violations of human rights in the Occupied Palestinian Territories rather than putting an end to such violations. If the HCPs want to push the peace process forward, they should apply de jure the provisions of the Convention, uphold the rules of international law, and undertake all available steps and measures to do so.

 

Sixthly, PCHR appreciates the Palestine Liberation Organization’s position as it resulted in the adoption by the UNGA of the new resolution and the demand for applying de jure the Fourth Geneva Convention of 1949 to the Occupied Palestinian Territories. The PLO has been invited many times to coordinate with Palestinian civil society in order to make use of all available expertise and to ensure that the conference results in the expected goals. Moreover, the PLO is invited to review the ongoing process, especially the Palestinian involvement, to ensure the convening of the conference on the basis of the UN resolutions.

 

Seventhly, in the light of the new development regarding the convening of the conference of HCPs, the ICRC is required as the guardian of the Geneva Conventions to do its utmost to ensure that the conference will realize its goals. While PCHR highly appreciates the committed position that the ICRC expressed at the experts’ meeting organized by the Swiss government last October, we invite the ICRC to distinguish its position from that of the Swiss government. In this regard, the ICRC is asked to review all measures taken so far, especially its participation in the aforementioned quadrilateral meeting.

 

The Palestinian Centre for Human Rights (PCHR), while calling for the honest and serious implementation of the UN resolutions, regards the Swiss government as a party that does not have the capacity or the intention to ensure the proper implementation of the UN resolutions. This position is based on the steps and measures taken by Switzerland, which deviate from the spirit and letter of the UN resolutions.

 

In the light of the new UN resolution to convene a conference of the HCPs to the Fourth Geneva Convention, PCHR will launch an international campaign in cooperation with a number of activist and international human rights organizations to disseminate information about the human rights situation in the Occupied Palestinian Territories, the measures and developments regarding the convening of the conference of the HCPs, and the Swiss performance as the depository of the Convention. Furthermore, the campaign aims to lobby the HCPs and their decision-makers in order to ensure that they fulfill their obligations in regard to the Convention. PCHR considers its work in this regard to be complementary to the Palestinian Authority’s efforts to ensure that the scheduled conference achieves its goals.

 

 

“END”

 

 

Draft Working Paper Presented for Discussion by PCHR to Palestinian, Regional, and International Human Rights Organizations

 

PCHR has been closely following the resolutions of the UN General Assembly (UNGA) which invited the High Contracting Parties (HCPs) to the IVth Geneva Convention to convene a conference to investigate measures to enforce the Convention in the Occupied Palestinian Territories (OPTs). The UNGA has adopted five resolutions in that regard, the last of which was on 8th February 1999. This resolution sets out the 15th July 1999 as the deadline for the convening of the conference. In its previous resolutions, the UNGA authorized the Swiss government, as the depository of the Convention, to make whatever preparations are necessary for the convening of the conference. Unfortunately, the majority of measures taken by the Swiss government in this regard deviate from the letter and spirit of the UN resolutions and are a real threat to the essence and goals of the resolutions, namely the application of the provisions of the Convention to the OPTs.

 

Based on the fact that the measures taken by the Swiss government constitute a real danger to the possibility of convening a conference of the HCPs as well as to the goals of any such convened conference, PCHR and other Palestinian and international human rights organizations and activists have no other option but to battle against time as the deadline for the convening of the conference has already been set. The aims of this emerging coalition are to lobby and put pressure on the HCPs and to ensure that the Swiss government is not only committed to what it has been authorized by the UN to do, but that it act more credibly and be less biased in whatever measures it takes. Furthermore, the aim is also to encourage the HCPs to fulfill their legal obligations under Article 1 of the Convention. Despite the fact that in the past the HCPs did not fulfill their obligations, they now have the opportunity to do so through the conference, which will provide them with an international mechanism for appropriate action.

 

To achieve these goals, PCHR will launch on 6th April 1999 the “Campaign to Implement the IVth Geneva Convention in the OPTs.” PCHR has invited a number of Palestinian, Arab, and international human rights organizations, as well as a number of individual human rights activists who expressed their willingness to be partners in the campaign, to meet in Geneva. This meeting will coincide with the 55th meeting of the UN Commission on Human Rights.

 

In the meeting, the participants will endeavor to exchange views, ideas, and suggestions regarding the role of the partners on both the international and the local level. In addition, a plan of action will be adopted which will consist of different activities to pressure and lobby the HCPs to the IVth Geneva Convention and push them to adopt concrete and specific diplomatic, economic, and political measures that will assist the achievement of the goals of the HCPs as was set out in the UN resolutions.

 

This draft working paper, which has been concluded by PCHR, contains ideas to be considered and worked on by the participants of the campaign. It includes specific suggestions about what the participants can do in the countries in which they work and outlines specific campaign demands of the HCPs to the IVth Geneva Convention. These demands constitute a model for measures that can be taken by these parties to fulfill their legal obligations under Article 1 of the Convention.

 

One: Measures to be taken by the HCPs

 

The main obligation of the HCPs is to monitor very closely whatever steps and measures are taken by the Swiss government in order to ensure its credible and unbiased commitment to the authorization given it by the United Nations. This could be achieved by periodically reviewing every step taken in this regard. Furthermore, the HCPs should undertake the following measures to fulfill their obligations under the Convention.

 

The UNGA or a group of its members should be authorized to send invitations to the HCPs for the conference according to a specific and clear agenda which is in harmony with its resolutions.

Pressure should be applied on the Israeli government through whatever diplomatic and other channels are available.

Diplomatic negotiations should be frozen and there should be a refusal to ratify agreements that have been signed in the past.

Economic privileges granted to the Israeli government through trade agreements should be suspended.

Restrictions should be imposed on exports and imports to and from Israel. Last year the European Commission reached a decision recommending not importing goods produced in the Israeli settlements. This was based on the fact that the settlements form part of the OPTs and should not benefit from trade privileges according to the Association Agreement with Israel.

Public aid and grants to the Israeli government should be suspended.

Investment in Israel by the HCPs should be banned.

Air-transport agreements should be suspended.

Cultural and scientific exchanges with the Israeli government should be suspended.

There should be legal prosecution of Israeli war criminals who have been proven to be responsible for committing grave breaches of the Convention, in accordance with Articles 146 and 147.

Israeli capital abroad should be frozen.

There should be mutual work between the HCPs, especially through the UN specialized agencies, for the sake of imposing sanctions on Israel as the occupying power.

 

 

Two: Activities to be carried out by NGO and activist partners

 

Lobbying and putting pressure on the governments of the countries where the partners are active. In addition, international organizations that have affiliations in different countries could make use of these to lobby various governments.

Launching a media campaign to target the decision-makers as well as the public to larify the real dangers arising from the non-application of the IVth Geneva Convention, as well as the importance of the conference of the HCPs in providing protection for Palestinian civilians.

Presenting oral and written statements to the different parliaments to activate them in persuading their governments to fulfil their legal obligations.

Recruitment of widespread local governments to take part in the campaign.

Recruitment of public opinion to play an effective role through a letter-writing campaign to governments urging them to fulfill their legal obligations and avoid mixing human rights with politics.

Using the available international mechanisms systematically and effectively to highlight the legal obligations of the HCPs and their expected role. In addition, the different UN agencies, such as the High Commissioner for Refugees, UNESCO, and others, should be addressed.

Partners could make use of experts from Palestinian human rights organizations in their activities.

The major role of the partners is to highlight the importance of the IVth Geneva Convention for the Palestinian people and its implications for the legal status of the OPTs, especially considering that the Oslo agreement is due to expire on 4th May 1999.

Making use of the local laws of the HCPs to implement the provisions of the IVth Geneva Convention through the courts, especially in those countries that have ratified the Convention.

 

PRESS RELEASE

 

Preparatory Meeting on Fourth Geneva Convention Concludes in Geneva

 

 

Ref: 38/99

Date: 8th April 1999

 

 

Yesterday, April 7, 1999, the preparatory meeting for the international campaign to implement the Fourth Geneva Convention in the Occupied Palestinian Territories was concluded. The Palestinian Centre for Human Rights initiated this campaign in association with Palestinian human rights organizations. A number of Palestinian, Arab, and international organizations, as well as human rights experts and activists were invited to attend the preparatory meeting. The meeting was held in the UN Headquarters in Geneva on April 6-7. The meeting participants discussed a plan of action for the partners proposed as a basis for the campaign to adopt the Fourth Geneva Convention in the Occupied Palestinian Territories.

 

The meeting was attended by representatives of the Palestinian Centre for Human Rights, the International Federation of Human Rights, Al-Haq, the International Commission of Jurists, the International Commission of Jurists - Sweden, the Robert F. Kennedy Memorial Center for Human Rights, the Arab Organization for Human Rights (Dr. Muhammad Faiq, Secretary General), the Arab Lawyers Union (Dr. Faruq Abu Issa, Secretary General), the Arab Working Group for Human Rights Defenders (Dr. Muhammad Mandour, Coordinator), the Morocco Organization for Human Rights (Dr. Muhammad Mawaqit), as well as Abdel Rahman Abu El-Nasser, Chairperson of the Palestinian Bar Association, Dr. Agneta Johansson of Sweden, Greg Nott of South Africa, Professor Paul de Waart of the Netherlands, and Suha Bishara from the Lebanese Committee for the Release of Lebanese Prisoners in Israel.

 

It should be noted that the UN General Assembly has adopted five resolutions, the latest of which was adopted on February 8, 1999, in which it called for the High Contracting Parties to the Fourth Geneva Convention to convene a conference on measures to implement the Fourth Geneva Convention in the Occupied Palestinian Territories. The conference of the High Contracting Parties will be held on July 15, 1999. This conference is considered to be of great importance as it will be the first meeting of its kind since the signing of the Convention in 1949. PCHR and its partners are committed to immediate action to exert pressure and to influence the High Contracting Parties to ensure that the conference will be held. PCHR and its partners are also committed to exerting pressure on the High Contracting Parties to the Fourth Geneva Convention for the implementation of practical measures regarding the Convention and the Occupied Palestinian Territories. During the Geneva meeting,

participants adopted a position paper pertaining to grave breaches of the Convention, other breaches of the Convention, and unilateral measures to change the status of parts of the Occupied Territories. Furthermore, a plan of action was adopted regarding the role of each partner in its own country.

 

 

 

Please see attachment for the position paper on the IVth Geneva Convention.

 

 

 

Position Paper Concerning Conference on Implementation of the IVth Geneva Convention in the Occupied Palestinian Territories

 

 

In its resolution A/ES-10/L.5/Rev.1 of 8th February 1999, the United Nations General Assembly recommended that the High Contracting Parties (HCPs) to the Fourth Geneva Convention (“the Convention”) convene a conference on measures to enforce this convention in the Occupied Palestinian Territories, including Jerusalem, on 15th July 1999, at the United Nations’ offices in Geneva. In so doing, it invited the Government of Switzerland, in its capacity as the depositary of the Geneva Convention, to undertake whatever preparations are necessary prior to the Conference. It also requested the UN Secretary General to make the necessary facilities available to enable the HCPs to convene the conference. It expressed its confidence that Palestine, as a party directly concerned, will participate in the above-mentioned conference.

 

The commitment of the HCPs to convene this conference was clearly established when states adopted the above- mentioned resolution by an overwhelming majority. The agreed focus of the conference is measures to be taken to ensure full implementation of the Convention.

 

To ensure that such a conference takes place, the Palestinian Centre for Human Rights (PCHR) took the initiative to launch a campaign on 6th April 1999 entitled: “A campaign to implement the Convention in the Occupied Palestinian Territories (OPT).” A number of Palestinian, Arab and international human rights organizations as well as human rights experts (the participants) adopted a plan of action to call upon the HCPs convene a conference in accordance with the General Assembly resolution and to adopt concrete and specific measures for the implementation of the Convention in the OPT.

 

The participants emphasized that the implementation of the Convention is a minimum requirement for the protection and safeguard of civilians, particularly at the end of this interim period. They also stressed that a Conference on the 15th of July that respects the provisions of the General Assembly resolution will be essential to a comprehensive, just and lasting peace between Palestine and Israel. The participants identified the following three categories that merit action by the HCPs. During the Conference, practical measures should be adopted to address these categories in order to ensure full implementation of the Convention:

 

1. Grave breaches of the Convention

 

Grave breaches of the Convention, such as torture or inhuman treatment and the taking of hostages, constitute war crimes. The HCPs are under a legal obligation, in accordance with article 146 of the Convention, to search for persons alleged to have committed or to have ordered to be committed such grave breaches and to bring them, regardless of their nationality, before their own courts. Specific measures should be taken to ensure that this obligation is fulfilled.

 

2. Other breaches of the Convention

 

Other serious breaches of the Convention include the establishment of Israeli settlements in the Occupied Palestinian Territories, including Jerusalem. The establishment of settlements is illegal according to Article 49 of the Convention, as has been repeatedly confirmed by UN resolutions.

 

3. Unilateral measures to change the status of parts of the Occupied Territories

 

Unilateral measures to change the status of parts of the Occupied Territories, including de jure and de facto annexation, are illegal according to the Convention. HCPs should not take measures that will lead to illegality.

 

In the circumstances, the participants urge the HCPs to focus the agenda of the Conference on specific measures to be adopted to stop the above-mentioned breaches. The overall objective of the Conference must be to ensure compliance with the Convention. In this regard, reference is made to the decision by the European Commission recommending that its Member States not import goods produced in the Israeli settlements. The participants look forward to the HCPs adopting similar constructive measures at the Conference. By so doing, the HCPs will remove a serious obstacle in the way of true conciliation between Israelis and Palestinians.

 

To this end, the participants, as part of civil society, commit themselves to support the HCPs in the implementation of the Convention.

 

SIGNED AT GENEVA ON THIS THE 7TH OF APRIL þþ1999

 

Palestinian Centre for Human Rights

Al-Haq

International Federation of Human Rights

International Commission of Jurists

International Commission of Jurists – Sweden

Robert F. Kennedy Memorial Center for Human Rights

Arab Organization for Human Rights

Arab Lawyers Union

Arab Working Group for Human Rights Defenders

Morocco Organization for Human Rights

Abdel Rahman Abu El-Nasser, Chairperson of the Palestinian BAR Association

Agneta Johansson, Sweden

Greg Nott, South Africa

Paul de Waart, the Netherlands

Amnesty International, Swiss Section (observer)

 

Also signed by:

The Jerusalem Center for Legal Aid

The Palestinian Independent Commission for Citizens’ Rights

LAW, the Palestinian Society for the Protection of Human Rights and the Environment

Middle East Watch

Cairo Institute for Human Rights Studies.

 

 

PRESS RELEASE

 

 

Palestinian Human Rights Organizations Demand Convening of the Conference of the High Contracting Parties to the Fourth Geneva Convention at Its Specified Time of July 15, 1999

 

 

15th June, 1999

 

Yesterday, June 14, 1999, a preparatory meeting for the conference of the High Contracting Parties (HCPs) to the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons In Time of War met in Cairo. The conference of the HCPs will convene in Geneva on July 15, 1999 to investigate measures for enforcing the Convention in the Occupied Palestinian Territories. The preparatory meeting is sponsored by the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People.

 

The UN General Assembly in a series of five resolutions relative to the Occupied Palestinian Territories – the last of which is A/RES /ES-10/6 of February 9, 1999 – reaffirmed that the Palestinian territories that came under the control of Israeli troops in 1967 are occupied territories and that the Fourth Geneva Convention is de jure applicable. The resolutions further declare that Israel’s occupation is a belligerent one. Consequently, Israel is obliged to fulfill the provisions of the Fourth Geneva Convention along with its legal duties toward civilians in the Occupied Palestinian Territories. The systematic violation of Palestinian rights and properties, including the legalization of willful killing, torture, confiscation of Palestinian land and building of settlements on it, administrative detention, restrictions on freedom of movement and construction, and separation of Palestinian families, has led the United Nations to invite the HCPs to fulfill their legal obligations under Article I – which provides that the parties undertake to respect the Convention and to ensure its respect in all circumstances – through the convening of the July 15 conference. This conference is to investigate measures for enforcement of the Convention in the Occupied Palestinian Territories. The Swiss government as the depository of the Convention is authorized to prepare for the conference and to take the necessary preparatory measures.

 

 

In light of the measures that have been taken so far, which are not in complete harmony with the invitation for the convening of the conference and the intended goals, and due to the fact that only one month is left before the conference to achieve the intended goals of the UN resolutions to enforce the Convention in the Occupied Palestinian Territories by putting an end to the daily suffering of the Palestinian people, providing protection for them and their properties, and ensuring the rule of international law as a foundation that cannot be ignored for any of the arrangements related to the Occupied Palestinian Territories, Palestinian human rights organizations are asking for the following:

 

The convening of the conference at its specified time based on the goals defined by the United Nations. Any failure to hold this conference poses a grave danger to the legal status of the Occupied Palestinian Territories and represents a severe lack of concern for international humanitarian law. Any other alternative would in fact make a mockery of international law and only contribute to the Israeli government continuing practices and measures that violate the provisions of the Convention and other rules of international law. This would definitely result in the deterioration of the situation in the Occupied Palestinian Territories and pose a significant threat to international security and peace.

 

Not to allow the peace process to take priority over the conference as this could result in the conference not being convened. The convening of the conference does not contradict the crisis-ridden peace process. Indeed, the convening of the conference at its specified time would constitute a strong push for peace in the region. Real peace cannot be achieved without being based on the parties’ respect for the rule of international law. Moreover, real peace demands the recognition of the Palestinian territories as occupied territories, demands Israeli respect for its legal obligations under the Fourth Geneva Convention, and demands putting an end to Israel’s systematic violation of Palestinian rights.

 

To condemn the Israeli and American position that is against the convening of the conference. This Israeli and American position is an intentional attempt to undermine the international will and a significant step toward the violation of international humanitarian law. The international community recognizes that the situation in the Occupied Palestinian Territories is both very dangerous and intolerable. While the international community is asking the HCPs to put an end to this situation, Palestinian human rights organizations see the United States taking a stand opposing the international position. The American position will only contribute to the continuation of Israeli violations of the Convention, the ongoing committing of war crimes, and the danger of undermining international peace and security.

 

Palestinian Centre for Human Rights

Palestinian Independent Commission for Citizens’ Rights

Al-Haq

Center for Democracy and Workers’ Rights

Al-Dameer Association for Human Rights – Gaza

Jerusalem Center for Legal Aid

Women’s Center for Legal Aid and Counseling

Addameer Prisoners’ Support Association – Jerusalem

Palestinian Centre for Nonviolence

 

Press Release

 

PCHR condemns the empty seat policy by United States of America, Canada and Australia

 

 

Ref.,: 69/99

Date: 1st July, 1999

 

It is of grave concern that three of the High Contracting Parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 1949, have announced their intention to boycott the UN General Assembly initiative to convene a Conference scheduled for 15 July 1999.

 

This initiative by the UN General Assembly was prompted by illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territories, especially settlement activities. Such activities have repeatedly been reaffirmed by the General Assembly as illegal and contrary to international law. A resolution of the General Assembly in February this year, expressed its increasing concern about the persistent violations by Israel, the occupying Power, of the provisions of the Fourth Geneva Convention in the Occupied Palestinian Territory.

 

In the context of these concerns and conscious of the serious dangers arising from the persistent violations and grave breaches, the General Assembly took the unprecedented action of recommending that the High Contracting Parties to the Fourth Geneva Convention convene a conference on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem. The General Assembly further recommended that the said conference be convened on 15 July 1999 at the United Nations Office at Geneva.

 

Furthermore, support for this initiative has been clearly given from international as well as Palestinian and Arab civil society and from leading international human rights organizations.

 

Nevertheless, contrary to the will both of the UN General Assembly and of international civil society and international human rights organizations, the United States of America, Canada and Australia have announced their intentions, as High Contracting Parties to the Convention, to boycott the scheduled conference. We regard this stance as contrary to the States’ legal obligations under article 1 of the Fourth Geneva Convention.

 

This empty seat policy is an intentional undermining of the State parties’ legal obligations, the rules of international humanitarian law and the will of the international community as expressed in the relevant UN resolutions. It represents a politicization of international law and as such it endangers international peace and security.

 

In support of their position the States concerned have suggested that the proposed conference is, by itself, a politicization of the Fourth Geneva Convention. On the contrary, this initiative by the UN General Assembly as it is, and as we see it, is not a political maneuver but rather a determined effort to ensure the respect by High Contracting Parties, including Israel, of their legal obligations under the Convention.

 

It has also been suggested that the Conference should be postponed again (the date has already been moved from 15 April to 15 July because of the Israeli elections) as a ‘goodwill gesture’ toward the new Israeli government and to allow them to restore the severe damage to peace process.

 

On the contrary, by taking the position of boycotting the Conference on the pretext of “giving peace a chance”, these States are in fact undermining the peace process which can only proceed on the basis of international human rights and humanitarian law.

 

Therefore, if the newly elected Israeli government genuinely wishes to pursue the process of peace, the Conference offers it an excellent opportunity to demonstrate such a desire and to show the international community that it intends to do so on the basis of respect for international law.

 

PCHR appeal to our partners to take action immediately and urgently to demonstrate the will of international civil society by condemning this empty seat policy. We urge all such partners to write to their governments, especially European governments and in particular the German Government as the head of the EU to fulfil their obligations under international law and to hold the Conference at the scheduled date. Furthermore, to contact the governments and embassies of the States opposing the General Assembly initiative and to apply pressure to those States to fulfill their obligations as High Contracting Parties under article 1 of the Convention.

 

“END”

 

 

PRESS RELEASE

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 Assembly’s 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 Assembly’s 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 Commissioner’s 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.

 

 

 

Statement of the U.N High Commissioner for Human Rights at the Meeting of Experts on General Problems concerning the 4th Geneva Convention

Relative to the Protection of Civilian Persons in Time of War

Geneva, 27 – 29 October 1998

 

 

Mr. Chairman, distinguished delegates and experts, fellow observers, ladies and gentlemen:

 

On behalf of the High Commissioner for Human Rights, I wish to express my thanks to the Government of Switzerland for inviting us to participate as observers to this meeting on the application of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. At the outset, let me state that I believe that I believe that an international meeting of experts convened at any time to examine the general problems of applications and enforcement of the Convention can be useful and helpful, if it remains true to the terms and spirit of the Convention itself toward the protection of civilians in war and under occupation.

 

Resolution ES-10/5 adopted by the UN General Assembly on 17 March 1998, recommended the convening of a conference of the High Contracting Parties on measures to enforce the Fourth Geneva Convention in the Occupied Palestinian Territories and to ensure its respect in accordance with their obligations under Article 1.

 

The General Assembly’ resolution also recommended that the Government of Switzerland – as the depository of the Convention – undertake the necessary preparatory steps, including the convening of a meeting of experts. Thus, Mr. Chairman, the success of this meeting will be judged by the world community according to the extent to which it facilitates and informs the convening of an international conference of the High Contracting Parties of the Fourth Geneva Convention to address specifically the issue of application and enforcement in the Occupied Palestinian Territories. It is my sincere hope that such conference will be convened as soon as possible.

 

Full application of the Convention is essential to guarantee respect for fundamental human rights of civilian populations in times of war and occupation – which is an issue of direct concern to the Office of the High Commissioner for Human Rights. As also highlighted by the ICRC in the background paper prepared for this meeting, recognition of the de jure application of the Convention is the first pre-requisite for any efforts aimed at the effective protection of civilians in these situations. In this connection, it has been confirmed time and time again in these situations. In this connection, it has been confirmed time and time again by all contracting parties to the Convention, except one, that the Convention does apply de jure to the Occupied Palestinian Territories. The General Assembly and the UN Commission on Human Rights have confirmed this in several recommendations and resolutions, calling upon the Occupying Power to respect its obligations under the Convention.

 

The ICRC paper describes in detail the rationale and many areas of applicability of the Convention in practical situations – as well as the problems encountered in its application – such as, for example, respect for the civilian population and preserving its autonomy; prohibition against population transfer, including the implantation of settlements and settlers – both voluntary and involuntary; deportations and evacuations; prohibited destruction and confiscation of homes and property; changes in the local legal system; treatment and transfer of internees; and conditions of military and security operations.

 

These, Mr. Chairman, are among the relevant areas in which the Convention provides protection for civilians under occupation. These issues are also of relevance to the human rights protections established under international instruments such as the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

 

Within the purview of the Office of the High Commissioner for Human Rights are the integrated and complementary tasks of supporting the UN human rights system, including the treaty monitoring bodies; monitoring human rights violations; and providing technical cooperation to assist governments to implement human rights. The OHCHR discharges its mandate in disputed and occupied territories, as well as in integral States. It should be noted for the purpose of this discussion that all UN treaty monitoring bodies to date have determined the applicability of Israel’s de jure obligations to fulfil its obligations to apply the human rights covenants and conventions in the Occupied Territories.

 

With regard to the Fourth Geneva Convention, the task ahead requires the High Contracting Parties, consistent with a good-faith initiative of the depository government, to cooperate in determining the appropriate means and measures available “to respect and ensure respect for the Fourth Geneva Convention in all circumstances.” To meet that challenge, legal and diplomatic mechanisms under the United Nations Charter are available, in addition to those created in connection within the Convention itself.

 

The ICRC’s background paper refers to conventions-based mechanisms, such as the International Fact-finding Commission, under Article 90 of Additional Protocol I, to assist in the implementation task. UN Charter-based mechanisms for consideration by the High Contracting Parties include also the imposition of sanctions under Article 41 of UN Charter, as well as other collective action for the purpose of self-defense and maintaining regional peace and security. Specific measures under the Charter cover a range of actions, including, inter alia:

 

Engaging legal mechanisms through interstate claims at the International Court of Justice and through existing treaty mechanisms;

The GA requesting Advisory Opinions of the ICJ, with GA responses to follow;

Applying economic and other sanctions against the State Party responsible for the violations.

 

The UN human rights instruments, the Fourth Geneva Convention calls upon States Parties to implement measures at the national level as well, including legislation, regulations and prosecution of those individuals responsible for violations. And, at the international level, tribunals and trials of individuals for war crimes and crimes against humanity remain an option for serious consideration.

 

In conclusion, the mandate of the High Commissioner for Human Rights makes it incumbent to seek resolution and remedies for human rights violations whenever and wherever they occur, and to prevent further violations, if possible. This is consistent with the laudable intent behind GA resolutions ES-10/5 and the many preceding resolutions by the General Assembly, the Security Council the Commission on Human Rights, and other UN bodies. This is what this meeting should address. To do less is to disregard the GA’s resolutions, undermine the Fourth Geneva Convention, and withdraw the protection of civilians that the war-weary community of nations created the Convention to provide.

 

Mr. Chairman, when the subject of law is human dignity itself, time is of the essence. Where grave breaches are at issue, and lives at stake, delay is tantamount to complicity. Respect for human rights and the application of humanitarian law cannot, and must never be deferred in the name of political expediency. In sum, if humanitarian law is to have any practical meaning for those it is intended to protect, then not only must the High Contracting Parties to the Convention embrace their moral and legal responsibility to ensure respect for its provisions, but they must do so without delay.

 

 

Thank you.

 

 

Mrs. Mary Robinson

UN High Commissioner for Human Rights

United Nations

Geneva

 

 

21/10/98

 

 

Dear High Commissioner,

 

We at the Palestinian Centre for Human Rights (PCHR) wish to express our appreciation of your efforts and dedication in the field of Human Rights, since your appointment as High Commissioner for Human Rights.

 

Regarding the UN General Assembly Resolutions ES10/2 – ES10/5, we are calling for the respect of these resolutions as authorised by the UN. However, we are highly concerned about the Swiss Government’s preparations for a conference of the High Contracting Parties of the IVth Geneva Convention of 1949, which relates to the protection of civilian persons in times of war, to investigate the measures to implement the Convention to the Occupied Palestinian Territories.

 

We believe that the Swiss preparations so far are in violation of the aforementioned Resolutions and we are critical of the Swiss Government for refusing to honestly apply the letter and spirit of the Resolutions.

 

Here at PCHR, we have been doing some intensive work on this issue and we enclose all of our documentation. We sincerely hope that our comments will be taken into consideration.

 

With regards

 

Yours sincerely

 

 

 

Raji Sourani

Director

PCHR

 

 

 

Mrs. Mary Robinson

UN High Commissioner for Human Rights

United Nations

Geneva

 

 

22/10/98

 

 

Dear High Commissioner,

 

May we at the Palestinian Centre for Human Rights (PCHR) take this opportunity to express our appreciation of your efforts and commitment to human rights issues since your appointment as High Commissioner.

 

We have just become aware that you have been invited by the Swiss Government

to attend the Meeting of Experts to follow up their preparations for the Conference on measures to enforce the IVth Geneva Convention in the Occupied Palestinian Territories.

 

Here at PCHR, we have been looking at this issue intensively (please see our attached documentation) and an “Advisory Meeting of Experts on Geneva IV” has been held. We have come to the conclusion that the implications of the Swiss Government’s activities are particularly damaging. We are calling for respect of the UN Resolutions 10/2-10/5 as authorised by the UN. However, we feel that the Swiss Government, with its preparations so far, is undermining the Resolutions.

 

As a Human Rights organisation, we feel that your participation in the meeting would cause complicity and contradict our views on the role of a UN High Commissioner.

 

Therefore, we appeal to you not to attend the meeting, as its implications would totally undermine and devalue the UN Resolutions.

 

Yours faithfully,

 

 

 

Raji Sourani

Director

 

 

Mrs. Mary Robinson

UN High Commissioner for Human Rights

Geneva

 

 

29/10/98

 

 

Re: The Meeting of Experts on General Problems concerning the Ivth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Geneva, 27 – 29 October 1998

 

 

Dear High Commissioner,

 

It was with relief and satisfaction that we received a copy of the statement delivered by your representative at the aforementioned meeting on October 27th, 1998.

 

Our initial position was that it would perhaps be better if OHCHR did not attend the meeting, as it had been organised in such a way as to avoid the essence of the G.A. Resolution ES 10/5 on the specific issue of the problems of violations of human rights in the Occupied Palestinian Territories and finding ways of resolving these problems.

Having read your statement however, we are now satisfied that it, in no uncertain terms, clarifies the moral and legal aspects of international humanitarian law which have been the General Assembly’s resolutions and those of other such international agencies, like the UN Commission on Human Rights and the various treaty bodies. We certainly hope that delegates, experts and other observers will do the same in order to give the conference some fruitful meaning. Or, at least, call for another meeting to serve that purpose.

 

Finally, let me assume that your statement has been very warmly received by Palestinian NGOs and people. It came at a time when recent developments in the peace talks have made us feel even more exposed to a deterioration in the human rights situation. Let us all hope that the world community seeks to emphasize the need for legality, humanity and morality as factors overriding political expediency.

 

We trust that with the courage of your conviction and commitment to the cause of human rights and its effect on the world community, we, the oppressed people of Palestine, still have some hope. We look forward to your continued support and cooperation.

 

Warmest regards

 

 

Raji Sourani

Director

 

 

 

 

 

 

U.N Resolutions concerning IVth Geneva Convention

 

 

 

Press Release Issued by United States Mission to the United Nations

 

 

 

 

The Statement of Switzerland Government at the United Nations General Assembly

 

 

 

Mr. President,

 

9th February, 1999

 

Switzerland, being a High Contracting party to the Fourth Geneva Convention, considers that the said Convention is fully applicable in the Occupied Palestinian Territories, including Jerusalem. On a number of occasions, Switzerland reiterated the full applicability of the Convention during the General Assembly sessions. Unfortunately, there is a lack of respect vis a vis this international instrument which affects the development and the rights of the civilian population. Consider, for instance, the settlement policy of the Occupied Palestinian Territories, the expulsions, the treatment of persons deprived of freedom, the casualties, the house demolitions and the violations of rights of property. Switzerland is deeply concerned by the deterioration of the situation on the ground, and urges respect for the Convention.

 

Concerning the Geneva Conventions, Switzerland, beyond its obligations as a High Contracting Party, fulfills as well the role of depositary. Therefore, this intervention addresses the exercise of this specific role by Switzerland in the context of the issue which brings us here today.

 

Under resolution ES-10/3 of 15th July 1997, the General Assembly recommended for the first time to the High Contracting Parties to the Fourth Geneva Convention “ to call for a conference on measures to adopt for the implementation of the Geneva Convention in the Occupied Palestinian Territories, including Jerusalem, and to ensure respect for the terms, under Article 1, common to the four Geneva Conventions.”

 

Why, today, after more than eighteen months following the adoption of this resolution, has this Conference not taken place?

 

Following the adoption of the resolution ES-10/3, Switzerland, as the depositary of the Convention, has undertaken since the summer of 1997, a consultation process with the States Parties to the Fourth Geneva Convention. In particular, Switzerland requested their views regarding the venue of a Conference and the possible outcome. There was apparently, no consensus between the States parties on the necessity to convene a meeting. The Fourth Geneva Convention does not contain specific provisions related to the convening of Conferences devoted to specific situations, nor does it specify the methods. A consensus would have enabled the depositary to quickly convene the Conference recommended by the General Assembly. Indeed, Switzerland should conceive its role as depositary in a restrictive way, particularly when the legal basis and the rules are not clearly defined or when the action can be subject to controversy. However, Switzerland can exercise this role more extensively when the context is clear and the States parties favorable to its actions.

 

In view of the recommendations reiterated by the General Assembly in November 1997 and March 1998, Switzerland pursued its consultations. An in camera meeting with the States and the Organisations concerned, Switzerland tried to identify some measures which could form a consensus and of a nature to promote the respect of the provisions of the Fourth Geneva Convention in the Occupied Territories. It is in this context of a consultation process with the States and the Organisations specifically concerned, that consensus took place regarding two measures, which were then communicated by the depositary to all the States parties in July 1998.

 

The first measure was to invite Representatives of both Israel and the Palestinian Liberation Organisation ( PLO ) to an in camera meeting in the presence of ICRC Officials, in order to examine measures and mechanisms which could contribute to the de jure applicability of the Fourth Geneva Convention within the Occupied Palestinian Territories, including Jerusalem. A first meeting took place in Geneva from 9th to 11th June 1998. The participants exchanged their views on the possibility to undertake concrete measures for the applicability of the Fourth Geneva Convention. They are supposed to meet again in order to examine further ideas and suggestions to promote the respect of the Fourth Geneva Convention. The hope to see an improvement of the situation on the ground did not yet eventuate. However, Switzerland, believes that this kind of meeting can reach positive outcomes in terms of improvement on the ground, on the basis of the mere fact that the respect of the provisions of the Convention is not being questioned. Since the summer of 1998, Switzerland has approached the participants to convene a new meeting. This meeting has been re-scheduled on several occasions. However, Switzerland hopes that a date can be agreed as soon as possible.

 

The second measure, consisted of the convening of a meeting of experts in order to examine general problems of the application of the Fourth Geneva Convention. This meeting was held in Geneva from 27th to 29th October 1998. It enabled the participants to brainstorm on the mechanisms to ensure the respect of this Convention, under the spirit of Article 1 common to the Geneva Conventions. This provision imposes on the States the obligation to respect, and ensure the respect of these instruments under any circumstances. It creates a legal obligation. However, the content of this obligation is not precisely defined. The Convention itself contains no mechanisms which ensure its respect. The 1949 Conference did not adopt any provisions relating to the settlement of disputes related to the interpretation of the Convention. At the most, it invites the States, in its resolution 1, to mutually agree to submit their disputes to the International Court of Justice. Therefore, article 1 returns to, essentially, the political will of the States, when it concerns measures to take in a concrete case in order to ensure the respect of the Convention.

 

During the meeting of experts, the participants identified some violations to the application of the Convention and the measures aimed at ending these violations and to prevent future violations. The participants emphasised that the obstacles to the applicability of the Fourth Geneva Convention are of political and legal nature. Among these measures mentioned during the meeting of experts, are the organisation of meetings where parties specifically concerned as well as some of the High Contracting Parties could participate to examine specific situations. This kind of meeting was held last June by some Representatives from both Israel and the PLO, in the presence of ICRC.

 

Among the 17 measures mentioned in the President’s report during that meeting, were featured the methods for holding Conferences related to specific situations., such as recommended by the General Assembly in the case of the Occupied PalestinianTerritories. The convening of such conferences raises a number of questions that the Geneva Conventions as well as their additional Protocols do not solve, and that only the High Contracting Parties can settle:

 

In which circumstances should such a meeting be convened?

 

To what extent can such meetings concretely improve the situation of the victims?

 

Who can take the initiative to convene such a meeting: the depositary? a specific number of High Contracting Parties ? an International Organisation?

 

How the decision to convene such meeting should be taken: Does the decision have to be taken by all the High Contracting Parties or by a simple or qualified majority or by the States who taking position?

 

How should the High Contracting Parties deal with a situation where one of the main parties concerned does not attend the Conference?

 

When the principle of the meeting is agreed, how should the decisions relating to its preparations and implementation be made?

 

What is to be its agenda and its objectives?

 

What procedural rules are applied?

 

Who takes charge of the costs?

 

Despite the consultations initiated since summer 1997 and the fact that precise issues were addressed by the Swiss delegation during the meeting of experts last October 1999, the depositary did not receive a conclusive response.

 

This is the substantive reason why the conference recommended by the General Assembly has not yet taken place. Very soon, the General Assembly will have to vote on a proposed Resolution recommending the convening of the Conference on 15 July 1999. This proposal was subject to difficult negociations, among them, the question of whether a specific date should be mentioned for the convening of the conference. The proposed resolution invites Switzerland, in its role as depositary, to undertake some preparations to that effect. Regarding these recommendations what will be the position of Switzerland, in its status as depositary of the Fourth Geneva Convention?

 

By sharing the report from the President of the meeting of experts of last October with the States Parties, with the UN Secretary General and with the observing parties, the Swiss Authorities announced their intention to undertake a new consultation of the States Parties to the Geneva Conventions, of the International Committee for the Red Cross ( ICRC), as well as some organisations particularly concerned. These consultations have already begun, in an informal way, on the issue of the convening of Conferences related to specific situations. Switzerland, in its status as depositary, can only envisage an active role in the convening of such Conference if the States Parties previously define a solid basis for the implementation of such measures, so that such measures can be applied in case of serious violations of the Fourth Geneva Convention. Switzerland takes note of the wish expressed by numerous States in front of this Assembly, to seek the basis for a common action of the High Contracting Parties. Switzerland therefore hopes that this action will reach a general consensus.

 

 

Thank you Mr. President.

 

 

 

Declaration of the Swiss Delegation at the 55th Session of the United Nations Commission on Human Rights (1999)

 

Point 8 of the Order of the Day

(Question of the violation of human rights in the Arab Occupied Territories, Palestine)

 

Declaration of the Swiss Delegation

(31 March 1999)

 

 

Madam President,

 

The report on the situation of human rights in the Occupied Palestinian Territories presented by Mr. Halinen led the Swiss delegation to bring several comments, relating as much to the IVth Geneva Convention as to the activities on the ground carried out by or supported by Switzerland.

 

Switzerland is the depository of the Geneva Conventions. The IVth of these Conventions concerns the protection of civilian persons in time of war, and it is, in the opinion of the Swiss government, applicable de jure in the territories occupied by Israel, including those territories which the international community has not recognised the annexation. International humanitarian law and international human rights law both have the goal of protecting the person for the reasons of humanity, but they show fundamental differences, derived in part from the fact that they were developed separately.

 

Humanitarian law is specifically concerned with armed conflicts. In this way, the IVth Geneva Convention forbids, under article 49 ‘forced transfer, en masse or individuals’ and specifies that ‘the Occupying power may not carry out deportation or transfer of part of its own civilian population into the territory it occupies’. Two of the main problems affecting the Palestinian people, which are the question of refugees and of settlement, are directly addressed by this article.

 

There exists a common ‘hard core’ between human rights and humanitarian law, and the prohibition of torture is part of that. It mast be restated that ‘torture and cruel, degrading or inhuman treatment’ are, and continue to be, prohibited in all times and places. With regards to Israel, the Special Rapporteur indicated that “the methods of interrogation … remain unchanged”. His general conclusion on the subject of torture in Israel was nevertheless optimistic. For our part, we hope sincerely that all the security forces, Israeli and Palestinian, will conform with international law. The reports of local and international NGOs active in the area will constitute, particularly in the next months, an important indicator.

 

Madam President,

 

Concerning the IVth Geneva Convention, the Special Rapporteur raises the ‘fundamental importance’ in his opinion, of the ‘convening … of a conference of the High Contracting Parties’, and he adds: meticulously prepared’. Several resolutions of the General Assembly, meeting in special sessions, have already recommended to the High Contracting Parties to convene this conference. In order to do so, as the Special Rapporteur has noted, meticulous preparations are necessary: indeed, the IVth Geneva Convention does not provide for the holding of conferences dedicated to specific situations, and consequently neither does it specify the methods by which to do so. In its role as Depository the Swiss government was invited by the General Assembly on 9 February 1999 to “take all the necessary steps to bring about this conference.” Before anything else, it is necessary for the High Contracting Parties to express their views on the methods by which such a conference should be held, it is in fact up to them to resolve these issues. Switzerland, as Depositary, has therefore addressed to the State Parties a series of questions on the methods to convene the Conference, and is at the moment awaiting their response. The Depositary therefore has carried out intensive efforts which have already brought about, last year, consultations and a meeting of experts.

 

After the adoption of the resolution ES-10/3, Switzerland, in its role as Depositary, has engaged, since the summer of 1997, in a process of consultation with the State Parties. In particular it has asked the State Parties to communicate to it their views concerning the holding of a conference and the envisaged results. Taking note of the recommendations reiterated by the General Assembly in November 1997 and March 1998, Switzerland has carried out these consultations. In close contacts with the principally concerned parties, Switzerland has tried to identify the measures which could bring about the aim of a consensus and which would be of a nature to promote respect for the provisions of the IVth Geneva Convention in the Occupied Territories. It is in the context of this process of consultation with the States and the other organisations particularly concerned, that a consensus has been reached on the subject two measures which were consequently communicated by the Depositary to all the State Parties in July 1998.

 

The first measure provided that Switzerland invite the representatives of Israel and the Palestinian Liberation Organisation to a meeting in camera and in the presence of representatives of the ICRC, in order to examine measures which could contribute to an effective implementation of the IVth Geneva Convention in the Palestinian Occupied Territories, including Jerusalem. A first meeting was held in Geneva from 9 to 11 June 1998.

 

The second part, on which the State Parties were consulted, consisted of the organisation of a meeting of experts called to examine the general problems of implementing the IVth Geneva Convention. This meeting was held in Geneva from 27 to 29 October 1998. It allowed the participants to reflect on ways to insure respect for the Convention, in the spirit of article 1 common to all the Geneva Conventions, which provides an obligation on States to respect and to ensure the respect of these instruments in all circumstances. In doing this, Switzerland is aiming, above all else, to give every chance for an effective improvement of the situation on the ground.

 

Madam President,

 

This humanitarian aim also guides the contribution of Switzerland to the peace efforts. As the Special Rapporteur emphasised “without respect for human rights there can be no durable peace” and it is essential to establish a climate of trust. The respect of humanitarian law and human rights is not negotiable, but it can and must constitute the basis of all negotiation in order to bring about peace. This is why Switzerland supported and accepted in 1995, in the framework of the multilateral process for peace in the Middle East, a mandate for the promotion of human rights and inter-cultural understanding. Switzerland has taken initiatives and supports projects in the domain of the ‘human dimension’, like the study of stereotypes in school textbooks of the region or the raising the awareness of human rights through the media in the Middle East.

 

Madam President,

 

We agree, once again, with Mr. Halinen, when he says that “democracy, the rule of law and respect for human rights are intimately connected and that it is at this level that a constant support from governments, international and non-governmental organisations, and donors is most necessary. Many States have made “good governance” and human rights one of the priorities of their cooperation in the development of the Palestinian Territories. Switzerland is one of them, and it supports, for example the introduction of a general curriculum of human rights in Palestinian secondary schools. Swiss cooperation in development supports equally NGOs in the area of legal aid and those working to reinforce the Palestinian judicial system; and amongst other activities, Switzerland is developing a programme for the rehabilitation of Palestinian ex-prisoners.

 

In summary, Madam President,

 

Whether in relation to cooperation for development, promotion of peace or improving the implementation of the law, the human concern, that of the interests of populations suffering violations of their fundamental rights, must be the priority in all circumstances, no matter who are responsible for the violations. It is in this sense that Switzerland is deeply engaged in the promotion of human rights and international humanitarian law.

 

 

 

Documents Relevant to the Conference

 

 

A Draft Diplomatic Memorandum

 

 

The Swiss Federal Department of Foreign Affairs presents its compliments to the General Delegation of Palestine and has the honour to convey what follows:

 

On 17 March 1998, the General Assembly of the United Nations adopted resolution ES-10/5 by which the General Assembly addresses recommendations to the High Contracting parties to the Fourth Geneva Convention (ES-10/5, para 3) and to the Government of Switzerland, in its capacity as the depositary of the Convention (ES-10/5, para 4 to 6).

 

Bearing in mind the political message conveyed by the General Assembly (ES-10/5, para 3 to 6),

Taking into consideration the results of the consultations, which it has conducted in its capacity as the depositary of the Geneva Conventions with these Parties and later on in particular with the States and Organisations concerned following the adoption of resolutions ES-10/3 and ES-109/4, and

Inspired by its often expressed desire to contribute to real improvements in the respect for humanitarian law on the ground, to avoid any politicization of international humanitarian law, and t6o support the peace process in the Middle East,

 

The Swiss Government has decided to propose a package of two measures which are intended to be mutually complementary.

 

On the one hand, Switzerland invites experts from Israel and the Palestine Liberation Organisation with presence of representatives of the International Committee of the Red Cross to a meeting in camera (which could be repeated if necessary). This meeting will be chaired by Switzerland and is aimed at examining measures and mechanisms which contribute to the effective application of the IV th Geneva Convention in the Occupied Palestinian Territories, including the territories annexed without recognition by the international community. Switzerland would inform the Contracting Parties and the Secretary General of the United Nations of the holding of this meeting; Switzerland would determine the form such information would take in consultation with the other participants.

 

The Swiss Government proposes that the suggested meeting take place from 9 to 11 June 1998 in Geneva. A draft agenda is enclosed in the appendix and forms an integral part of this note.

 

On the other hand, Switzerland will, in the first days of July, 1998, propose to the Parties to the IV th Geneva Convention a meeting of experts analogous to the first Periodical Meeting on International Humanitarian Law, which took place with the participation of a Palestinian delegation in Geneva from 19 to 23 January 1998. This meeting should proceed to an analysis of the general problems concerning the IV th Geneva Convention and seek possible remedies which would contribute to the respect for the Convention (in general, and in particular in occupied territories), in the tradition of the Geneva meeting on international humanitarian law. The discussions would be informal and reflected in a report by the chairman.

 

The Federal Department of Foreign Affairs would appreciate it if the General Delegation could communicate the composition of the Palestinian delegation not later than 4 June 1998.

 

An identical invitation has been sent to Israel on the same day as well as to the International Committee of the Red Cross.

 

Information concerning practical aspects of the 9-11 June meeting will be sent in due course.

 

The Federal Department of Foreign Affairs avails itself of this opportunity to renew to the General Delegation of Palestine the assurances of its highest consideration.

 

 

DRAFT AGENDA

 

 

Opening remarks by the Chair

 

Adoption of the agenda

 

 

General statements by delegations

 

Main issues with regard to the implementation of the IV GC

 

Possible measures contributing to the improvement of the implementation of the IV GC

 

unilateral measures

bilateral measures

multilateral measures

 

Follow-up of the meeting

 

Closing remarks

 

 

 

The English Version of the Presidential Report

 

 

Rapport de la Présidence en version anglaise

 

Experts’ meeting hold in Geneva from 9 to 11 June 1998 on the application of the IV th Geneva Convention

 

 

Report by the Chair

 

Bearing in mind several Emergency Session Resolutions of the General Assembly of the United Nations, Switzerland, depository of the Geneva Conventions, convened an experts’ meeting near Geneva, from 9 to 11 June 1998, after having conducted extensive consultations with the High Contracting Parties and in particular with states and organisations concerned. This meeting was the first part of a package of two measures proposed by Switzerland to Israel and to the Palestine Liberation Organisation, as well as to the International Committee of the Red Cross.

 

The meeting chaired by Switzerland brought together Israeli and Palestinian representatives in the presence of the ICRC. The President of the Swiss Confederation, Flavio cotti, took the opportunity to meet the delegations and express the support of the Swiss government for the ongoing efforts with regard to this important issue.

 

Parties participating at the meeting held at Sarasin Villa agreed to hold their discussions in camera and to commonly issue a press release. Concluding remarks by the chair were also accepted by the Main issues regarding the applications of the IV th Geneva Convention have been raised. Significant conceptual differences have emerged concerning the implementation of the IV th Geneva Convention, its relation with the peace process in the Middle East and the security environment.

 

The discussions have been frank and constructive and have been held in a spirit of respect and understanding. Israeli and Palestinian representatives have agreed to follow the three principles proposed by Switzerland for meeting on this issue:

 

Contribute to real improvements in the respect for the international humanitarian law on the ground;

Avoid any politicisation of international humanitarian law, and

Support the peace process in the Middle East.

 

The Parties exchanged views on the feasibility of establishing mechanisms and taking concrete measures to implement the Fourth Geneva Convention. All delegations have reaffirmed that the Geneva Conventions are a core value of international law and have to be respected.

 

With a view to continuing the dialogue, the parties agreed to meet again to take into consideration ideas and suggestions that can foster respect of the fourth Geneva Convention. As a first step of a possible co-operation mechanism, Switzerland considers this meeting as encouraging and will continue to support this process.

 

 

The Draft Swiss Call for the Expert Meeting

 

Note verbale-type en version anglaise

 

The Swiss Embassy presents its compliments to … and has the honour to bring the following to its attention:

 

After the adoption of several Emergency Session Resolutions, the General Assembly of the United Nations, on 17 March 1998, adopted Resolution ES-10/5, by which recommendations were addressed to the States parties to the IV th Geneva Convention (ES-10/5, para 3) and the Government of Switzerland, in its capacity as the Depositary of the Convention (ES-10/5, Para 4 to 6).

 

Bearing in mind the message thus conveyed by the General Assembly and taking into consideration the results of the consultations which have been conducted with these States Parties and, subsequently, with the States and Organisations more particularly concerned, the Swiss Government proposed to the latter a package of two measures which are intended to be mutually complementary.

 

On the one hand, Switzerland would invite representatives of Israel and of the Palestine Liberation Organisation, in the presence of representatives of the International Committee of the Red Cross, to a meeting in camera chaired by Switzerland and aimed at examining measures and mechanisms which could contribute to the effective applications of the IV th Geneva Convention in the Occupied Palestinian Territories, including the territories annexed without recognition by the international community. This meeting took place from 9 to 11 June 1998 in Geneva. A short presentation of the discussions is enclosed in the annex.

On the other hand, Switzerland would, in the first days of July 1998, propose to the States Parties to the IV th Geneva Convention the convening of an expert meeting, to be held in early autumn 1998, which would proceed to an analysis of the general problems regarding the IV th Geneva Convention – in general and, in particular, in occupied territories – and seek possible remedies.

 

The purpose of the present note is now to propose to the States Parties that the Swiss Government proceed as described and convene such a meeting, which would take place in principle from 27 to 29 October 1998 at Centre international de conférences de Genéve (CICG), 15, rue de Varembé, in Geneva.

 

The meeting should consider general problems regarding the IV th Geneva Convention – in general and, in particular, in occupied territories. The object and format of this meeting of experts would be analogous to that of the first Periodical Meeting on International Humanitarian Law which took place in Geneva from 19 to 23 January 1998. In the spirit of the Periodical Meetings, as they have been conceived by the 26th International Conference of the Red Cross and Red Crescent (1995) in its Resolution 1, the problems under examination “will not relate to any specific situation, but will be of a general character that can be of interest for States in general” (statement made by Switzerland at the 26th International Conference of the Red Cross and Red Crescent, p.117). One should recall that the objective of such meetings is to maintain and strengthen the dialogue between the High Contracting Parties to the Geneva Conventions on general problems regarding the application of international humanitarian law.

 

In accordance with the practice established by the first Periodical Meeting, the proposed meeting should be in the nature of an exchange of views that could be structured along the following lines:

 

identification of problems and their causes;

possible solutions;

possible follow-up.

 

In view of the informal character of the discussions, no rules of procedure would be applied; there would be no bureau and the meeting would be chaired by a representative of the Depositary.

 

The discussion would be reflected in a report by the chairman, to be transmitted to the States Parties and to the Secretary General of the United Nations.

 

In addition to the State Parties, other participants would be invited to the meeting.

 

The Embassy would appreciate if the … could communicate its views on the above-mentioned proposal until 15 August 1998.

 

The Swiss Embassy avails itself….

 

 

A Proposed Mechanism

 

 

I. PRINCIPLES

 

The aim of the mechanism is the application of the Fourth Geneva Convention in the occupied Palestinian territories.

 

The aim is to establish a mechanism which should improve the application of the IV Geneva Convention in concrete cases through co-operation of the parties concerned. The legitimate security interests of the parties concerned will be taken into account. The mechanism will not prejudge the question of the applicability of the Fourth Geneva Convention nor can it be interpreted as implying any derogation. The mechanism does not exclude direct contacts between the parties of the taking of unilateral measures.

 

The mechanism will be established without prejudice to the traditional role and activities of the ICRC.

 

2. The scope of application of the mechanism is limited to the IV Geneva Convention.

 

The IV Geneva Convention should be in principle fully implemented: an improvement of the humanitarian situation on a step by step basis will be accepted as long as it does not hinder the full application of the IV Geneva Convention in the future. The Agreements concluded within the framework of the peace process do not limit the application of the IV Geneva Convention. The mechanism is not based on reciprocity.

 

3. Switzerland offers its services as a facilitator and not as an arbitrator.

 

Switzerland makes available to the parties the infrastructure as foreseen in the mechanism. Switzerland also examines the formal admissibility of the complaints, transmits the complaints and the answers to the complaints to the addresses, convenes and presides over the meetings. The general functioning of the mechanism is assessed regularly by Switzerland.

 

4. The parties concerned co-operate in good faith within the mechanism in the light of the common goal described. Any decisions of the parties concerned are made by consensus.

 

5. The existence as well as the general functioning of the mechanism are made public. The procedure dealing with a concrete case is confidential (the complaint, answer to the complaint, etc.).

 

Switzerland is aware that a violation of the IV Geneva Convention and the fact that a complaint was filed can not be kept secret. However, the exact content of the complaint, the answer to the complaint as well as the further procedural steps are confidential.

 

6. The solutions to the problems of application of the IV Geneva Convention are treated in principle on a general level. Exceptionally, single cases are admitted if they are of an important public interest.

 

The individual cases are classified in categories (i.e. group 1: destruction of houses; group 2: discriminatory treatment of family members of arrested persons). This enables the parties to discuss the individual cases of a category together and to find a “general” solution for all the cases in the said category. The categories with an important number of cases will be in principle treated first.

 

7. The mechanism treats current problems of application of the IV Geneva Convention.

 

A criteria has to be determined by which “current” and “old” cases can be distinguished. “Current” cases are all cases which occur after the mechanism entered into effect as well as cases which occurred before the mechanism entered into effect but create a situation which continues to be illegal after the mechanism has become effective.

 

8. The mechanism has also a preventive function.

 

The measures which the Israelis intend to take for security reasons in the occupied territories should be preliminarily discussed with the Palestinians with a view to avoiding possible violations of the IV Geneva Convention.

 

9. Delimitation and co-ordination with the “Joint Committees of Palestinians and Israelis.”

 

Switzerland is aware of the fact that the Israelis and the Palestinians established several joint committees within the framework of the peace process and that the scope of activity of some of the joint committees and the mechanism might overlap. Switzerland proposes not to delimit the scope of application of the mechanism in order to avoid a conflict of competence. The mechanism can be launched unilaterally. The solution to a problem and its implementation can only be reached within the mechanism by consensus. In this spirit, Switzerland suggests to leave the choice to the parties, on a case by case basis, whether they would like to solve problems by using the mechanism and the help of Switzerland as a facilitator or not. Since other states are members of “The Continuing Committee for the Displaced Persons and other Matters of Common Concern,” Switzerland suggests to exclude the problem of the refugees of 1967 of the scope of application of the mechanism.

 

10. Only the Palestinian Authorities are entitled to file complaints.

 

Switzerland in its role as a facilitator will only have contact with the Palestinian and the Israeli authorities. Only complaints written on an official paper of, and signed by, the Palestinian authorities will be admitted.

 

11. The role of the ICRC within the mechanism has to be defined in agreement with the ICRC.

 

12. The mechanism has to be from the Swiss point of view “operational.” This means that it should be able to reach the determined goals in an efficient way.

 

The structure and procedure of the mechanism must be designed in such a way that it can function efficiently. The infrastructure should be reasonable.

 

13. The mechanism shall be tested during one year; thereafter a review will take place.

 

 

II. ELEMENTS OF A MODEL

 

 

Basic Element

 

 

Element “Written Procedure: Ordinary Measure”

 

1. The complaining party transmits its complaints to Switzerland (probably to the Embassy in Tel Aviv).

2. Switzerland registers the complaints and confirms its receipt in writing.

3. Switzerland examines the admissibility of the complaints by applying the following criteria:

- The complaining party has to be entitled to file a complaint (the Palestinian authorities).

- The complaint has to be handed in on an official paper of the Palestinian authorities (letterhead) and in English.

- The complaint must contain a short presentation of the facts and a short legal motivation.

- The problem must fall within the scope of application of the mechanism.

- It must be a current problem.

- The problem should as a rule be presented within a group of similar cases, which enables the parties – if necessary – to consider the facts of each single case and to find a general solution for this category of problems.

4. Switzerland transmits the admissible complaints to the Israeli authorities and informs the complaining party thereof. The rejected complaints are sent back to the complaining party with a short motivation.

5. The Israeli authorities answer the complaint within one month (since the receipt of the complaint) to Switzerland. The Israeli authorities might act in three different ways:

- The Israeli authorities reject the complaint because the presentation of the facts does not comply with the reality (Behavior A).

- The Israeli authorities admit the presented facts but justify their measures with security or other reasons (Behavior B).

- The Israeli authorities are ready to co-operate to reach a solution regarding the problem described in the complaint (Behavior C)

6. Switzerland informs the Palestinian authorities and proceeds the following way:

- Israeli behavior A or B: Switzerland will not take immediately any further steps.

- Israeli behavior C: Switzerland convenes – if necessary – an ad-hoc meeting between the Israeli and Palestinian authorities on an expert level with a view to coordinating the implementation of the results achieved.

 

II. Optional Elements

 

Element “Urgent Measure”

 

Aim: In case of extraordinary incidents, which represent a serious and immediate danger for life and limbs of the protected people, the complaining party does not have to observe the rules of the written procedure.

Procedure: The complaining party concerned informs Switzerland, which examines whether the prerequisites of the “Urgent Measure” are met. If they are fulfilled Switzerland informs the other party and convenes an ad hoc meeting.

 

Element “Preventive Measure”

 

Aim: The measures which the Israeli intend to take for security reasons in the occupied territories should be preliminarily discussed with the Palestinians with a view to avoiding possible violations of the IV Geneva Convention.

Procedure: The Israeli or Palestinian authorities inform Switzerland which informs the other party concerned and – if necessary – convenes an ad hoc meeting.

 

II. Complimentary Elements

 

Element “Consultations”

 

Aim: Separate consultations of Switzerland with the Israeli and Palestinian authorities; the possibility for the ICRC to attend the consultations should be reserved; the “Consultations” are complimentary to the “Written Procedure.”

Frequency: Every four months.

Object: The rejection of the complaints on formal ground, Israel’s behavior A and B as well as the possibilities to improve the mechanism will be discussed.

 

Element “Senior Level”

 

Aim: Regular Discussion with regard to the mechanism at the quadripartite experts’ meeting: it is a complementary measure to the “Consultations” (which take place every four months) and to the ad hoc meeting to co-ordinate the implementation of the results achieved by the measures A, B, C.

Frequency: Annual

Object: Discussions relating to the principles and the possibilities to improve the application of the IV Geneva Convention; monitoring function.

 

 

FEDERAL DEPARTMENT OF FOREIGN AFFAIRS-SWITZERLAND

GENEVA, 11 JUNE 1998

embargo:11.06.98-15:00

 

 

Press release

 

Experts' meeting on the application of the Fourth Geneva Convention

 

 

An experts' meeting on the application of the Fourth Geneva Convention was held at Sarasin Villa, near Geneva, from 9 to 11 June 1998. The meeting chaired by Switzerland brought together Israeli and Palestinian representatives in the presence of the International Committee of the Red Cross. The President of the Swiss Confederation, Flavio Cotti, took the opportunity to meet the delegations and express the support of the Swiss government for the ongoing efforts with regard to this important issue.

 

Bearing in mind several Emergency Session Resolutions of the General Assembly of the United Nations, Switzerland, depository of the Geneva Conventions, convened this meeting after having conducted extensive consultations with the High Contracting Parties and in particular with states and organisations concerned.

 

This meeting was the first part of a package of two measures proposed by Switzerland. The second measure, an experts' meeting of the High Contracting Parties of the Geneva Conventions on problems of the Fourth Geneva Convention (in general, and in particular in occupied territories), will be proposed in the early days of July. It is expected to take place in early autumn 1998.

 

Parties participating at the meeting held at Sarasin Villa agreed to hold their discussions in camera and to commonly issue the present press release.

 

Main issues regarding the application of the IVth Geneva Convention have been raised. Significant conceptual differences have emerged concerning the implementation of the IVth Geneva Convention, its relation with the peace process in the Middle East and the security environment.

 

The discussions have been frank and constructive and have been held in a spirit of respect and understanding. Israeli and Palestinian representatives have agreed to follow the three principles proposed by Switzerland for meetings on this issue:

 

 

contribute to real improvements in the respect for the international humanitarian law on the ground;

avoid any politicisation of international humanitarian law, and

support the peace process in the Middle East.

 

 

The parties exchanged views on the feasibility of establishing mechanisms and taking concrete measures to implement the Fourth Geneva Convention. All delegations have reaffirmed that the Geneva Conventions are a core value of international law and have to be respected.

 

With a view to continuing the dialogue, the parties agreed to meet again to take into consideration ideas and suggestions that can foster respect of the Fourth Geneva Convention.

 

A Letter by the Swiss Foreign Ministry on the Call for Convening the Conference

 

7 July 1999

 

A Letter by PCHR to Swiss Foreign Ministry Calling to Join the Conference

 

8 July 1999

Letter by PCHR to Mr. Pierre-Yves Fux of the Swiss Foreign Ministry on Accrediting Human Rights Organizations as Observers in the Conference of the High Contracting Parties – July 8, 1999

 

 

 

 

The 14-15 July Parallel Meeting of Human Rights Organisations to the 15 July 1999 Conference of High Contracting Parties to the IVth Geneva Convention

 

 

Date: 14th July, 1999

 

The parallel meeting of human rights organisations, convened by LAW and PCHR, with the participation of international, Arab and Palestinian NGOs and experts, met in Geneva on 14 July 1999, to follow and discuss the planned Conference of High Contracting Parties to the IVth Geneva Convention of 1949, on measures to enforce the Convention in the Occupied Palestinian Territories. The meeting agreed the following in plenary:

 

The Conference of High Contracting Parties called for by United Nations General Assembly resolution, ES 10/6 of 9 February 1999, represents an important opportunity to advance the application of international humanitarian law. This Conference occurs at a moment when the world is commemorating the fiftieth anniversary of the Geneva Conventions. It also comes at a time of increasing international efforts to ensure accountability for violations of human rights and humanitarian law, as evidenced by the Rome Statute establishing an International Criminal Court, and the greater exercise of universal jurisdiction with regard to war crimes and crimes against humanity.

 

There exists a long-standing and unanimous consensus of the High Contracting Parties, with the sole exception of Israel, that the Convention is de jure applicable to all of the Occupied Palestinian Territories, including Jerusalem. The Conference provides an opportunity for the High Contracting Parties to give effect to their obligations under Article 1 both to respect and to ensure respect for the provisions of the Convention. Unfortunately, the process established to follow up the General Assembly call for enforcement measures has been politicised by efforts to give political negotiations between the parties to the conflict priority over international humanitarian law. Discharging the:

Article 1 requirement to comply with and enforce protections for civilians in occupied territories must not be made contingent on the outcome of political negotiations. Enforcement cannot be left to negotiations between occupier and occupied. The international communitys discharge of its obligations under international law must not be subordinated to the desire to promote political negotiations. The pursuit of a durable peace requires respect for international human rights and humanitarian law. The High Contracting Parties are under a legal obligation to discharge their duties under the Convention in good faith.

 

Israel's violations of the Convention are well known, and well documented. Measures of enforcement include those specifically mentioned in the Convention itself, such as the Article 146 obligation to pursue and prosecute those alleged to have committed grave breaches. The process established by the relevant UN General Assembly resolutions has regrettably been marked by numerous and significant politically motivated delays and efforts to defer or postpone the conference indefinitely. We are gravely concerned by the pressure exerted by the United States to derail the 15 July conference, and by the readiness of other parties, notably Australia and Canada, to concede to such pressures. The European Union states have also displayed a lamentable readiness to subject their Article 1 obligations to political considerations. A lack of transparency has also characterised the process, including the decision to exclude NGOs from the 15 July conference.

 

The High Contracting Parties, in particular those that have agreed to the convening of the conference should adopt a substantive agenda at the 15 July conference designed to address the ongoing Israeli breaches of the Fourth Geneva Convention in the Occupied Palestinian Territories. In particular, (a) grave breaches, including, but not limited to, wilful killing, torture, inhuman treatment, unlawful confinement of protected persons, and extensive destruction and appropriation of property, as pecified in Article 147; (b) other serious breaches of the Convention, such as establishment and expansion of Israeli settlements contrary to Article 49, and; (c) unilateral measures to change the status of parts of the Occupied Palestinian Territories, including in Jerusalem. The High Contracting Parties must also ensure that neither they nor their =

nationals contribute to these violations.

 

We remind High Contracting Parties of their existing obligations under Common Article 1, regardless of the outcome of the 15 July 1999 conference, to ensure respect for the rights of protected persons in the Occupied Palestinian Territories. As a matter of priority, monitoring and other mechanisms should be put in place to ensure protection of the civilian population in the Occupied Palestinian Territories. Any decision to abstain from adoption of enforcement measures in deference to political negotiation would represent an impermissible politicisation of international humanitarian law, and complicity in its violation.

 

 

Signed on 14 July 1999 by:

 

 

Afro-Asian People's Solidarity Association

 

Amnesty International

Association Switzerland-Palestine

Euro-Mediterranean Human Rights Network

Federation Internationale des Ligues des Droits de l'Homme

Human Rights Watch

International Commission of Jurists

International Commission of Jurists - Swedish Section

International Observatory for Palestinian Affairs

International Service for Human Rights

World Federation of Democratic Youth

Arab Lawyers' Union

Arab Organisation for Human Rights

Arab Working Group for Human Rights Defenders

Jordanian Committee on the Implementation of the Geneva Convention in the Occupied Palestinian Territories

Jordanian Society for Citizen's Rights

Jordanian Society for Freedom and Democracy

Jordanian Society for Human Rights

Mizan - Law Group for Human Rights

Adalah - Legal Centre for Arab Minority Rights in Haifa

Al-Haq

Jerusalem Centre for Social and Economic Rights

Jerusalem Legal Aid Centre

LAW

Palestinian Centre for Human Rights

Palestinian Bar Association

Arab Organization for Human Rights – Jordan

Arab Organization for Human Rights – London

 

 

PARALLEL MEETING OF HUMAN RIGHTS ORGANISATIONS FOURTH GENEVA CONVENTION 14 –16 July 1999

 

 

PRESS RELEASE

 

Geneva, 15 July 1999

 

Bad Precedent After Fifty Years

 

The Fourth Geneva Convention of 1949 protects civilians under conditions of military occupation against violations by the Occupying Power of their fundamental human rights, such as torture, wilful killing and the transfer of civilian nationals of an Occupying Power into occupied territories.

 

A parallel meeting of international, Arab and Palestinian human rights organisations and experts is extremely disappointed by the conference of High Contracting Parties on Measures of Enforcement of the Fourth Geneva Convention in the Occupied Palestinian Territories. That conference convened today and adjourned after ten minutes, failing even to set a follow-up meeting.

 

On the occasion of the fiftieth anniversary of the Geneva Conventions, we deeply regret that the High Contracting Parties meeting here have not fulfilled and appeared to have repudiated the mandate they took upon themselves when they voted for the General Assembly resolution calling for this conference. By failing to hold a substantive conference to address pressing questions of enforcement of the Convention, the Parties have undermined and politicised the application of international humanitarian law, not only with regard to this conflict but other and future conflicts as well.

 

We remind all High Contracting Parties that they are under obligation according to Article One to respect and ensure respect for the Fourth Geneva Convention in all circumstances.

 

We expect the Parties to take immediate steps to ensure that the protection of civilians under occupation as mandated by the Fourth Geneva Convention is implemented.

 

For further information contact:

 

Palestinian Centre for Human Rights LAW Society

Tel/Fax: 972 7 2823725 – 2825893 Tel: 972 2 5833553

Fax: 5833317

E-mail: pchr@trendline.co.il E-mail: law@lawsociety.org

 

 

The Final Statement of the Conference of High Contracting Parties to the Fourth Geneva Convention

The Response of the Swiss Foreign Ministry on the Conference

 

The Response of UK on the Conference

 

Letter by PCHR on the Decision of Israeli High Court on Torture

 

 

18 October 1999

 

 

Re: High Court Decision on Torture

 

 

Dear Sir,

 

 

On Monday, 6 September 1999, the Israeli High Court of Justice convened and issued its ruling on a number of applications submitted to the Court by human rights groups against the use of torture methods by the Israeli General Security Service (GSS). The Court’s ruling prohibited the employment of physical force by the GSS, in doing so it considered a number of specific methods routinely employed by the GSS and declared that they constituted torture and were illegal. This decision has several significant implications.

 

The Court found that a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever. As the Court correctly found, this is the standard set both by numerous international treaties and jus cogens under conventional law. Amongst the treaties which prohibit the use of torture, ‘cruel, inhuman treatment’ and ‘degrading treatment’ are the Convention Against Torture and the IVth Geneva Convention (Article 3). As the Court also correctly concluded, these provisions are ‘absolute’. There are no exceptions to them and there is no room for balancing.

 

Therefore the Court correctly found that the methods employed in the past by the GSS were illegal and contrary to the standards of international law.

 

Despite this, the Court, later in its judgment, declined to take a stand on the legality of the use of physical force in “special circumstances” (such as the so-called ‘ticking bomb’). Rather, the Court decided that the GSS is not authorised according to Israeli law to use such methods. The focus of the judgment was on the question of whether or not GSS interrogators were authorised under law to employ these methods, rather than on the legality of the methods themselves.

 

“If the State wishes to enable GSS investigators to utilise physical means in interrogations, it must seek the enactment of legislation for this purpose.” (para 37)

 

The Court also considered the States argument that an authorisation for the employment of physical force in the course of interrogation can be found in the “necessity” defense, provided for in the Penal Law (Article 34 (11)). While correctly asserting that such an authority cannot be inferred on the basis of this defense, the Court held that the defense would be open to an investigator criminally indicted with employing physical force in the course of an interrogation. Furthermore, in the conclusions of the ruling the Court said,

 

“If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogations this is an issue that must be decided by the legislative branch … we don’t take any stand on this matter at this time”. (para 39)

 

Accordingly the door was opened by the Court for the Legislature to enact a law that authorises the use of physical methods against Palestinian detainees. A possibility which the Court declined to take a position on, despite its own finding that such methods were contrary to both international law and Israeli Basic laws, without exception.

 

Under Article 146 of the IVth Geneva Convention, all High Contracting Parties are obliged to enact effective penal sanctions against grave breaches of the Convention, and to take action to ensure that all people responsible for grave violations are brought to justice. Furthermore, in all cases the High Contracting Parties are obliged to take all necessary measures to suppress violations of the Convention.

 

Grave breaches of the Convention are defined, in Article 147, as including inter alia: torture, unlawful confinement, and willfully denying the right to a fair trial.

 

Finally, under Article 148, no High Contracting Party may absolve itself or any other High Contracting Party from liability relating to any grave breach of the Convention (as defined in Article 147).

 

In the light of the recent decision of the Israeli High Court of Justice, which found that the General Security Service of Israel has been employing illegal methods of torture in its interrogation of Palestinian detainees, and with reference to the provisions of the IVth Geneva Convention, we would like to bring the following important points to your attention.

The international community at large, and particularly the High Contracting Parties to the Fourth Geneva Convention, must take actions to ensure that the Israeli Knesset does not enact a law that empowers the GSS to employ physical force against Palestinian prisoners, even in exceptional circumstances. The Draft Law of the GSS of 1997, which has just passed the first reading of the Knesset poses a very real and present threat, and reinforces the urgency with which such action must be taken. According to international law, torture is prohibited in all circumstances, without exceptions.

 

The Government of Israel should commit itself immediately to the ruling of the Court and ban all directives which admit the use of torture against Palestinian prisoners. Torture must be stopped, and all regulations and directives admitting its use are illegal, including the recommendations of the Landau Commission of 1987 which must also be abandoned

 

The judgment of the Court rules illegal interrogation methods which have been systematically used by the GSS against thousands of Palestinian prisoners throughout more than three decades. Thus confessions of Palestinian prisoners which resulted from the use of such methods are also invalid. Accordingly the State of Israel is required to review the files of thousands of Palestinian prisoners and retry their cases in proper fair and legal trials.

 

The State of Israel is required to redress and compensate thousands of Palestinian prisoners who were subjected to torture methods in the past.

 

All those who were involved in the practice of torture methods, whether as the direct perpetrators, those who gave directives or those who sanctioned the practice at the executive level, must be held accountable for their involvement in these illegal acts.

 

As a High Contracting Party to the IVth Geneva Convention, you are obliged to take all necessary actions to ensure that these matters are dealt with in a manner which meets the requirements of the Convention. In this context, PCHR believes that the five points raised above require your attention and action.

 

The Court’s decision comes as the result of many years of persistent struggle by Palestinian, Israeli and international human rights organisations against the use of torture methods by Israel’s GSS interrogators. This struggle has been carried out on many levels, from the local to the international, and by many different means, including legal and political. Palestinian and Israeli human rights organisations are, for our part, committed to continuing this work, and we ask the international community to join us and to act according to their obligations to ensure the elimination of torture.

 

Yours Sincerely,

 

 

Raji Sourani

Director

 

The Response of the British Government to the Message of PCHR on Torture

 

 

 

 

 

 

 

 

 

 

 

 

Documents of the Expert Meeting (Geneva 27-29 October, 1998)

 

 

MISSION PERMANENTE DE LA SUISSE PRES LES ORGANISATIONS INTERNATIONALES

 

 

 

Check against delivery

Original: French

 

 

 

EXPERT MEETING ON THE

4TH GENEVA CONVENTION

 

(GENEVA, 27-29 October 1998)

 

 

 

OPENING STATEMENT

 

 

by

 

Ambassador Walter B. Gyger

 

Chairman of the meeting

 

 

 

Geneva, 27 October, 1998

 

Your Excellencies, distinguished Delegates and Colleagues, Ladies and Gentlemen,

 

It is my pleasure to welcome you on behalf of the Swiss authorities to this Expert Meeting on the 4th Geneva Convention of 1949. I see with satisfaction that in spite of the relatively short time at our disposal for the organisation of this meeting, a great number of us are now gathering to discuss the important questions on the agenda for the next three days. I would like to thank you for your readiness to come and make a contribution to the promotion of international humanitarian law and its better respect.

 

Ladies and Gentlemen,

 

Our responsibility in participating in this meeting is very clear to me. As representatives of the Contracting Parties to the 4th Geneva Convention, it is our task to look for means of solving the problems of application we encounter only too often, and to do so in the tradition of humanitarian meetings, that is, without polemic, without denunciations, without looking for guilty parties. We should have but one ambition: that of being able, ultimately, to provide the victims of armed conflicts, wherever they are, with better assistance and protection. Humanity and universality – if I may borrow from the Movement of the Red Cross two of its main principles – must therefore be the two keywords of this meeting.

Of course, as everyone here is aware, this meeting has to some extent its origins in the resolutions adopted in July and November 1997 and in March 1998 by the General Assembly of the United Nations during its tenth emergency special session and therefore the issue of the occupied Palestinian territories is of primary concern to a number of delegations present today. It is probably to be expected, as a consequence, that some of those delegations feel the need to express themselves on that issue. It is equally known, however, that this meeting shall not devote itself to any specific situation.

 

It must be underlined here that this meeting is not the result of any exclusively Swiss initiative but that it is the outcome of a lengthy process of consultations conducted since July 1997 with the Contracting Parties to the Geneva Conventions, to whom a package of measures has been submitted in July 1998 and who in a great number have pronounced themselves in favour of this package.

 

On the one hand, this package provided that Switzerland should invite representatives of Israel and of the Palestine Liberation Organisation to a meeting in camera and in the presence of representatives of the ICRC, in order to examine measures and mechanisms that could contribute to an effective application of the 4th Convention in the occupied Palestinian territories, including those whose occupation has not been recognised by the international community. This meeting in camera took place on 9-11 June of this year. The delegations that participated in that meeting also expressed inter alia their agreement with the Swiss package. A second similar meeting was scheduled for last week, but had to be postponed in view of the Wye Plantation summit. The Swiss authorities hope that it will take place in the near future and have sent a new invitation to this effect to the interested parties.

 

The package of measures provided, on the other hand, that the Depository should propose the convening of a meeting of experts to examine general problems of application regarding the 4th Convention – in general and, in particular, in occupied territories. The present meeting has now been convened, on the basis of the support expressed by the States Parties and of the agreement of the organisations more particularly concerned.

 

Several delegations have expressed diverging views regarding the understanding of whether this meeting constitutes a preliminary step to the conference recommended in Paragraph 3 of resolution ES-10/5 of the General Assembly. In this context, I want to underline that the Swiss authorities have convened this meeting, as I already referred to, as an element of a package of measures, after consultation and bearing in mind the message conveyed to the Contracting Parties to the IVth Geneva Convention by the General Assembly. The Swiss authorities consider that this meeting should not in one way or another prejudice the positions of the Contracting Parties with regard to the implementation of resolution ES-10/5 or possible recommendations that may be formulated in future by the General Assembly of the United Nations. In this regard, the meeting is not the Depository’s final response to the resolutions adopted by the General Assembly. Indeed, it will be up to the Contracting Parties to evaluate the results and to consider the advisability and modalities of possible subsequent action.

 

Ladies and Gentlemen,

 

As Switzerland’s invitation to the Contracting Parties and observers specifies, this meeting is a meeting of experts which is of a general and informal nature. In this regard, let me dwell for a few moments on the general principles that will govern our debates. These principles were mentioned in the invitation you have received, and were the object of far-reaching preliminary consultations.

 

As I have just pointed out, this meeting does not concern itself with any specific situations. On the contrary – and this is clearly expressed in our invitation – the purpose is to analyse the problems encountered in the application of the 4th Convention – in general and, in particular, in occupied territories – to seek measures that may serve to overcome these problems and to review the means required to implement these measures. If it should become absolutely necessary, specific examples may be mentioned as long as they serve to illustrate the general problems encountered in the application of the Convention or indicate elements of possible solutions to these problems and are presented in a succinct manner and avoid deliberate confrontation. Consequently, I would like to urge you to refrain from statements of a political nature – which bear on specific situations – and I would like to thank you in advance for the support you will offer to the Chairman in that regard.

 

The informal nature of the meeting will imply essentially that no negotiations will be conducted, no decision will be made and no ballot will be cast.

 

In particular, the Chairman’s report, which will be drafted under his sole responsibility, will not be submitted to the participants in the meeting for their approval. This report, which will therefore commit the Chair alone, will be sent to the Contracting Parties and the Secretary General of the United Nations, as well as to the observers to this meeting. Reflecting the view expressed in the debates, including any possible divergences, the report will not contain any reference to a specific situation or a particular regional context.

 

These general principles were described with precision in the invitation that you have received. As you will have noticed, these principles are inspired by the tradition of humanitarian meetings and conferences, particularly the concern of placing the humanitarian needs of the victims at the centre of the discussion, excluding any political considerations. For my part, I consider your presence here today to signify your acceptance of these terms, for which I would like to thank you.

 

Moreover, and before outlining the way in which the debates will be organised, I also have to make the following declarations.

 

In the face of the objections expressed by a certain number of Contracting Parties to the participation of the Federal Republic of Yugoslavia, the Belgrade authorities decided to relinquish their participation and called upon the Chair to circulate a document among the delegations present at this expert meeting, which will be done.

 

As far as Palestine is concerned, I have to specify that

 

“The appellation ‘Palestine’ is used in place of the designation ‘Palestine Liberation Organisation’ and this appellation has no territorial connotation in the context of the present meeting”.

 

These specifications are identical with those applied to the same issues on the occasion of the 25th International Conference of the Red Cross and the Red Crescent in 1995, and then again at the first Periodical Meeting on International Humanitarian law in January of this year. I am very pleased that the delegations concerned have once again displayed their good will and understanding, thus contributing to the preservation of the non-political character of this meeting.

However, a supplementary specification must be added here. The Swiss authorities were inspired by the meetings and conferences organised in the context of the Red Cross Movement as regards both the spirit and the terms of these gatherings. Even so, it must be underlined that this meeting is not a “Red Cross meeting”, just as it is not a UN meeting, either. As an event that is unique of its type, this expert meeting, in particular, is not part of the process of periodical meetings, although it is organised along the lines of the first of these meetings, according to a model that had been recommended at the time by the participating countries.

 

Ladies and Gentlemen,

 

I would now like to provide you with some indications as to the organisation of the work. As pointed out in the invitation note, our work will be concerned with the examination of the general problems encountered in the application of the 4th Convention, both in general terms and with regard to occupied territories, and with the search for possible solutions. In order to achieve this, we will proceed in three rounds of discussions, as this was outlined in the document entitled “Work organisation” that was sent to the delegations.

During the first stage, we will concentrate on questions concerning the protection of civilian populations in armed conflicts in general (apart from occupied territories). During the second stage, we will deal with questions concerning the protection of civilian populations in occupied territories. These two rounds should enable us to take stock of the problems and, as it were, to make a diagnosis of the application of the 4th Convention.

 

Finally, during the third stage, we will seek possible solutions to the general problems identified and seek ways in which these solutions could be best applied, both at a national level and at other levels.

 

At every stage, the Chair will provide a brief introduction to these topics. Moreover, a list of speakers is open for each round of discussion in the Chair’s secretariat. Delegations wishing to do so are invited to register on it.

This way of organising the discussions, too, was the object of wide-ranging consultations, as is customary, and has found a great deal of support.

 

The discussion will be opened immediately after my remarks by the head of the delegation of the International Committee of the Red Cross, who will present to us the document that the ICRC has prepared in view of this meeting. I would like to take this opportunity to thank the ICRC for drafting this document, which will serve as the basis of our deliberations. As a guardian and promoter of international humanitarian law, the ICRC is also often the only institution capable of providing civilian populations affected by conflicts with support and protection. The role of the ICRC is therefore of major and unique significance in many places where it is called upon by victims. For this reason, I will turn to the ICRC at the end of each of our discussion rounds so that its representatives have the possibility to answer possible questions of a general order and acquaint us with their reflections and comments after our discussions.

 

Ladies and Gentlemen,

 

Allow me to conclude by once again underlining our responsibility towards the victims. It is for their benefit that we are meeting. It is they who call upon us to work, in good faith, for a better application of the 4th Convention. All the victims, wherever they are, must receive our attention. We know all too well that violations of international humanitarian law, yet real atrocities very often, are committed all over the world. The force of international humanitarian law lies in the simplicity of its essence -- human compassion – and in its universality. It also lies in the scrupulous preservation of a distinction of what is humanitarian and what is political. I myself will do nothing and will allow nothing to be done during the coming three days that would prejudice the integrity of international human law and thus the interests of the victims. I am convinced that you all share my objective, and that with me, you will on the contrary make efforts to promote international human law in a manner that will afford the best possible protection to all those who are in need of it.

Before opening the discussion, I would briefly like to introduce to you the members of this panel, who will assist me during these three days:

 

to my left, Mr. Pierre de Cocatrix, he is a Counsellor to the Permanent Mission of Switzerland to the International organisations in Geneva; at his side, Mr. Manuel Sager, Counsellor, will assist me in the redaction of the Chairman’s report;

to my right, Mr. Didier Chassot of the Federal Department of Foreign Affairs and Mr. Jean-François Paroz, Counsellor at the Permanent Observer Mission of Switzerland to the United Nations in New York.

finally, I am also assisted by Ambassador Gian Federico Pedotti, Ambassador of Switzerland in Amman.

 

Thank you very much indeed. I will now give the word to the representative of the ICRC.

 

 

STATEMENT OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS at the Meeting of Experts on General Problems concerning the 4th Geneva Convention

Relative to the Protection of Civilian Persons in Time of War

Geneva, 27 – 29 October 1998

 

 

Mr. Chairman, distinguished delegates and experts, fellow observers, ladies and gentlemen:

 

On behalf of the High Commissioner for Human Rights, I wish to express my thanks to the Government of Switzerland for inviting us to participate as observers to this meeting on the application of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. At the outset, let me state that I believe that I believe that an international meeting of experts convened at any time to examine the general problems of applications and enforcement of the Convention can be useful and helpful, if it remains true to the terms and spirit of the Convention itself toward the protection of civilians in war and under occupation.

 

Resolution ES-10/5 adopted by the UN General Assembly on 17 March 1998, recommended the convening of a conference of the High Contracting Parties on measures to enforce the Fourth Geneva Convention in the Occupied Palestinian Territories and to ensure its respect in accordance with their obligations under Article 1.

 

The General Assembly’ resolution also recommended that the Government of Switzerland – as the depository of the Convention – undertake the necessary preparatory steps, including the convening of a meeting of experts. Thus, Mr. Chairman, the success of this meeting will be judged by the world community according to the extent to which it facilitates and informs the convening of an international conference of the High Contracting Parties of the Fourth Geneva Convention to address specifically the issue of application and enforcement in the Occupied Palestinian Territories. It is my sincere hope that such conference will be convened as soon as possible.

 

Full application of the Convention is essential to guarantee respect for fundamental human rights of civilian populations in times of war and occupation – which is an issue of direct concern to the Office of the High Commissioner for Human Rights. As also highlighted by the ICRC in the background paper prepared for this meeting, recognition of the de jure application of the Convention is the first pre-requisite for any efforts aimed at the effective protection of civilians in these situations. In this connection, it has been confirmed time and time again in these situations. In this connection, it has been confirmed time and time again by all contracting parties to the Convention, except one, that the Convention does apply de jure to the Occupied Palestinian Territories. The General Assembly and the UN Commission on Human Rights have confirmed this in several recommendations and resolutions, calling upon the Occupying Power to respect its obligations under the Convention.

 

The ICRC paper describes in detail the rationale and many areas of applicability of the Convention in practical situations – as well as the problems encountered in its application – such as, for example, respect for the civilian population and preserving its autonomy; prohibition against population transfer, including the implantation of settlements and settlers – both voluntary and involuntary; deportations and evacuations; prohibited destruction and confiscation of homes and property; changes in the local legal system; treatment and transfer of internees; and conditions of military and security operations.

 

These, Mr. Chairman, are among the relevant areas in which the Convention provides protection for civilians under occupation. These issues are also of relevance to the human rights protections established under international instruments such as the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

 

 

Within the purview of the Office of the High Commissioner for Human Rights are the integrated and complementary tasks of supporting the UN human rights system, including the treaty monitoring bodies; monitoring human rights violations; and providing technical cooperation to assist governments to implement human rights. The OHCHR discharges its mandate in disputed and occupied territories, as well as in integral States. It should be noted for the purpose of this discussion that all UN treaty monitoring bodies to date have determined the applicability of Israel’s de jure obligations to fulfil its obligations to apply the human rights covenants and conventions in the Occupied Territories.

 

With regard to the Fourth Geneva Convention, the task ahead requires the High Contracting Parties, consistent with a good-faith initiative of the depository government, to cooperate in determining the appropriate means and measures available “to respect and ensure respect for the Fourth Geneva Convention in all circumstances.” To meet that challenge, legal and diplomatic mechanisms under the United Nations Charter are available, in addition to those created in connection within the Convention itself.

 

The ICRC’s background paper refers to conventions-based mechanisms, such as the International Fact-finding Commission, under Article 90 of Additional Protocol I, to assist in the implementation task. UN Charter-based mechanisms for consideration by the High Contracting Parties include also the imposition of sanctions under Article 41 of UN Charter, as well as other collective action for the purpose of self-defense and maintaining regional peace and security. Specific measures under the Charter cover a range of actions, including, inter alia:

 

Engaging legal mechanisms through interstate claims at the International Court of Justice and through existing treaty mechanisms;

The GA requesting Advisory Opinions of the ICJ, with GA responses to follow;

Applying economic and other sanctions against the State Party responsible for the violations.

 

The UN human rights instruments, the Fourth Geneva Convention calls upon States Parties to implement measures at the national level as well, including legislation, regulations and prosecution of those individuals responsible for violations. And, at the international level, tribunals and trials of individuals for war crimes and crimes against humanity remain an option for serious consideration.

 

In conclusion, the mandate of the High Commissioner for Human Rights makes it incumbent to seek resolution and remedies for human rights violations whenever and wherever they occur, and to prevent further violations, if possible. This is consistent with the laudable intent behind GA resolutions ES-10/5 and the many preceding resolutions by the General Assembly, the Security Council the Commission on Human Rights, and other UN bodies. This is what this meeting should address. To do less is to disregard the GA’s resolutions, undermine the Fourth Geneva Convention, and withdraw the protection of civilians that the war-weary community of nations created the Convention to provide.

 

Mr. Chairman, when the subject of law is human dignity itself, time is of the essence. Where grave breaches are at issue, and lives at stake, delay is tantamount to complicity. Respect for human rights and the application of humanitarian law cannot, and must never be deferred in the name of political expediency. In sum, if humanitarian law is to have any practical meaning for those it is intended to protect, then not only must the High Contracting Parties to the Convention embrace their moral and legal responsibility to ensure respect for its provisions, but they must do so without delay.

 

 

Thank you.

 

INTERVENTION TEXT

The Delegation of Palestine

Agenda Item 2

 

Distinguished Chairman:

 

The Delegation of Palestine wishes to thank Switzerland for its remarkable efforts that have succeeded in focusing the attention of a large body of the community of High Contracting Parties to the Fourth Geneva Convention of 1949 on problems relating to the Convention’s application.

 

On April 24th 1997, the United Nations General Assembly convened the Tenth Emergency Special Session under the principle “Uniting for Peace” in the context of a High Contracting Party’s persistent refusal to respect, or accept the de jure applicability of, the Fourth Geneva Convention of 1949 in the territories it has occupied since 1967. The General Assembly subsequently adopted resolutions ES 10/2, ES 10/3, ES 10/4 and ES 10/5.

 

The themes of these resolutions center on the need for steps to help mobilise common article 1-based joint enforcement action in response to a specific case of serious and persistent violations, and on the need for the High Contracting Parties to confer on practical steps towards that end. These themes have given rise to a need to consider certain specific problems of a general nature concerning the application of the Convention in occupied territories. Our Delegation is deeply grateful to Switzerland for organising this meeting of experts in a manner that allows scope for their consideration.

 

Resolution ES 10/5 “reiterates once again its recommendation that the High Contracting Parties to the Fourth Geneva Convention of 1949 convene a conference on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, and to ensure its respect in accordance with common article 1”. Further, ES-10/5 “reiterates its recommendation to the Government of Switzerland, in its capacity as the depositary 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”.

 

This meeting of experts is in fact the second element of a package of two meetings on the application of the Fourth Geneva Convention convened by Switzerland in response to the aforementioned General Assembly Resolution. Our Delegation regards both meetings as important preparatory steps towards the implementation of Resolution ES 10/5’s first-mentioned recommendation.

 

The first element, an in camera meeting held with the Occupying Power and the representative of the Palestinian protected persons, in the presence of the International Committee of the Red Cross, was convened in July. In that meeting, significant differences emerged concerning the implementation of the Convention.

 

In this meeting, and in keeping with the terms of reference specified by Switzerland for this expert meeting, and in light of the specific problems and recommendations addressed in General Assembly Resolution ES 10/5, which Switzerland has cited as the context that has led to the convening of this meeting, the Delegation of Palestine wishes to call attention to two inter-linked problems of a general nature that beg careful consideration:

 

the general problem posed by cases of serious violations where:

the de jure applicability of the Convention has been duly established at the public international level;

an Occupying Power that is a party to the Convention refuses to apply the Convention as law;

the mechanisms of enforcement internal to the Convention are therefore not operating, or are inadequate to prevent serious violations;

efforts to persuade the Occupying Power to respect the Convention have been unavailing; and

article 1-based enforcement measures by the High Contracting Parties, the Convention’s ultimate guarantors, offer the sole remaining prospective remedy.

 

the likelihood that recalcitrant Occupying Powers, especially those engaged in the global violation of the Convention, will put forward tendentious and specious justifying theories that are in fact subversive of the Convention. Such developments compound the damage done to the convention by the extended failure of the High Contracting Parties to effectively curtail the pattern of actual violations.

 

We have heard some examples of such destructive theories emerge in this meeting.

 

The internationally discredited theory of the absent reversioner has again been put forward by the Delegation of Israel in its intervention of yesterday, notwithstanding the irrelevance of the existence of a displaced sovereign to the applicability of the Convention pursuant to the clear language of articles 2, 6 and 4.

 

A more dangerous theory has been put forward in this meeting, according to which the Convention, and presumably the backbone international human rights instruments, do not set non-derogable and absolute limits on the means that may be legitimately employed by states to meet their equally legitimate need to maintain military and public security. If individual state advocates of this theory wish to have the community of High Contracting Parties revisit such questions, they may, once having divested themselves of the status of an Occupying Power, invite the international community of states to consider enhancing the established code of protective standards so as to better realise the aim of humanitarian protection in an evolving world. Unilateral, and quite possibly opportunistic defection from clearly prescribed standards, especially on the part of an Occupying Power should, however, be recognised as intolerable.

 

Equally dangerous is the more cryptic version of such defection from non-selective adherence to the prescribed standards of humanitarian protection: the entertainment of “de facto” implementation of the Convention as a substitute for its de jure application. Toleration by the High Contracting Parties of partial and selective application of a de jure applicable international humanitarian Convention is, given the principle enshrined in common article 1, tantamount to their derogation from the Convention. Having said this, it is equally clear that, where the necessary conditions for establishing de jure applicability have been met, short-term de facto ameliorative efforts by the High Contracting Parties have a complementary place alongside diligent enforcement de jure.

 

The idea of the High Contracting Parties tolerating, and even sanctioning de facto application, and the term itself, is increasingly becoming a cryptic invitation, and a cryptic justification, for partial and selective application. We are at the brink of a steep slippery slope when torture by the agents of an Occupying Power can be justified as “moderate physical pressure”, and claimed to be made legitimate by novel security imperatives. When the Occupying Power’s establishment of settlements in occupied territories, house demolitions and predatory confiscation of Protected Persons’ land and property is justified by security arguments and the notion of the absent reversioner. When the right of indigenous residents protected by the Convention to reside in their native community is vexed or revoked by an Occupying Power on grounds that a portion o the occupied territory has been rightfully annexed.

 

These happen to be some of the specific problems arising from Israel’s un-redressed systematic and persistent violation of the Convention suffered by the Palestinian population. However, the failure of the High Contracting Parties to remedy them over a thirty-year period of occupation is a general problem suffered by all people actually or potentially in need of the Convention’s protection. It is a problem to making and keeping peace in an entire region. In light of the General Assembly Tenth Emergency Session resolutions, it is also a problem recognised as threatening the international community’s interest in preserving international peace and security.

 

The ultimate guarantors of the Convention, and its humanitarian protections are the High Contracting Parties. It is time that attention be turned from projects that seek to expansively develop the theory of universal humanitarian protection established in international law to the problem of how to make the essential protections already established work universally. All that stands between making the Convention work in the circumstances embodying the particular general problem which we hope this meeting will adequately address is an improved standard of diligence on the part of the High Contracting Parties themselves. Common article 1 must be better operationalised. The Delegation of Palestine thus finds itself in sympathy with its Israeli colleague’s reference to the importance of functionality, although not in agreement with that colleague’s notion of what functionality means with respect to a treaty like the Convention.

 

A retreat from de jure applicability, and full de jure application will not serve the Convention, or its aims. It will only degrade its protective capacity – for all protected persons in all circumstances. The General Assembly resolutions taken in the tenth emergency session simply crystallise the challenge and call to mind the solemn undertakings unmet over three decades in the case of the Occupied Palestinian Territory and its people. The Palestinian people are not alone in being deprived of their right to the standard of humanitarian protection proclaimed in the Convention. It is time that the community of High Contracting Parties restores truth to their advertising.

 

For its part, the Palestinian delegation wishes to assure the delegations of the High Contracting Parties in attendance of the Palestine Liberation Organisation’s attachment to its responsibilities as the internationally-recognised representative of the Palestinian persons protected by the Convention as a consequence of Israel’s occupation in 1967 of the West Bank, including occupied Jerusalem, and the Gaza Strip. It wishes, moreover, to assure the delegations in attendance, and the honorable Chair of this meeting, of its keen awareness of the internationally-recognised territorial dimension of its responsibilities in this respect, covering the entire Palestinian population which resides, or resided, in all the territories occupied by Israel in 1967.

 

[In this regard, Mr. Chairman, our Delegation would like to announce that meetings at the Wye Plantation between the delegation of the Palestine Liberation Organisation led by President Arafat and the delegation of Israel led by Prime Minister Netanyahu, in the presence of the host, President Clinton and his senior colleagues, have resulted in a successful outcome, putting the Peace Process back on track. This has resulted in extending the territorial jurisdiction of the Palestinian Authority over a further 13 % of the West Bank.]

 

Mr. Chairman: Fundamental norms and standards governing the conduct of an Occupying Power have been established in international law to protect the civilian victims of occupation, inter alia, by prohibiting the unilateral annexation of occupied territories and the transfer of nationals of the Occupying Power into occupied territories, by restricting the denial of protected persons’ right to reside in their native locales, and by restricting the introduction of changes in the occupied population’s public life and habitat that are detrimental to their interest and well-being.

 

We say yet again: the High Contracting Parties are themselves the ultimate guarantors of the Convention. The process of resolving upon and coordinating individual and joint enforcement action among them, in accordance with common article 1, is an essential element of the Convention’s operation. However, that process requires formal and practical specification. In making its recommendations, the General Assembly has both recognised the need for such enforcement by the High Contracting Parties in the Occupied Palestinian Territory, including Jerusalem, and recognised the need for an expert-level meeting to resolve upon a sound general approach to organising a process through which High Contracting Parties can consider and coordinate article 1-based action towards this particular end.

 

For these reasons our Delegation regards this expert meeting as an essential clarifying step towards preparing for a conference of High Contracting Parties. The general problem of how to mobilise and facilitate the consideration and coordination of Article 1-based enforcement action among the High Contracting Parties – in general, and, by extension, in the particular case of the Occupied Palestinian Territories – will, it is hoped, be addressed in the third agenda item discussions.

 

In keeping with the terms of reference specified by Switzerland for this expert meeting, and in light of the specific problems and recommendations addressed in General Assembly Resolution ES 10/5, which Switzerland has cited as the context which has led to the convening of this meeting, our Delegation will, in the context of those discussions, propose two general remedial measures, and practical ways in which those measures could be implemented.

 

 

Doucuments of International, Arab, and Israeli Human Rights Oranizations on Convening the Conference of the High Contracting Parties to the Fourth Geneva Convention

 

 

 

The Casablanca Declaration of the Arab Human Rights Movement Adopted by the First International Conference of the Arab Human Rights Movement Casablanca, 23-25 April, 1999

 

 

At the invitation of the Cairo Institute for Human Rights Studies, and hosted by the Moroccan Organization for Human Rights, the First International Conference of the Arab Human Rights Movement: Prospects for the Future was held in Casablanca from 23 to 25 April, 1999, to examine the human rights conditions in the Arab world, and the responsibilities, tasks and prospects of the Arab human rights movement.

 

After extensive discussions, the Conference declared that the only source of reference in this respect is international human rights law and the United Nations instruments and declarations. The Conference also emphasized the universality of human rights.

 

The International Setting

 

The Conference examined the international setting and conditions affecting the status of human rights specifically in the Arab world and affirmed the following:

 

The call for substantial reforms in the United Nations so as to make it more representative of the regions and peoples of the world, and more effective in fulfilling its role and in expressing the common interests and responsibilities of humanity.

 

The importance of drawing the attention to the grave consequences of using the principles of human rights for the realization of specific foreign policy objectives of some countries. It affirms that the Arab world is still suffering from the opportunistic, political and propagandist use of human rights by some major powers as evidenced by the double-standards employed by such powers, most notably the United States of America.

 

Calling upon the UN Security Council to review the international sanctions system and its application methods. The Conference also urges the UN Security Council to decide to immediately and unconditionally end the economic sanctions on Iraq, considering that their devastating effects on the civilian population could be likened to genocide.

 

Rejecting the manipulation by some Arab governments of patriotic sentiments and the principle of sovereignty so as to avoid complying with international human rights standards.

 

Rejecting any attempt to use civilizational or religious specificity to contest the universality of human rights. Commendable specificity is that which entrenches the dignity and equality of citizens, enriches their culture and promotes their participation in the administration of public affairs.

 

 

Peace and the Rights of Peoples and Minorities

in the Arab World

 

The Conference declares its support for the proposed UN Decade for the Culture of Peace and affirms that acceptable peace is that which is based on respect for fundamental rights, justice and peoples’ inherent dignity. It should also be based upon the provisions of international law, the UN resolutions, and the due respect of human rights -- most notably the right to self-determination.

 

The rights of the Palestinian people are the proper standard to measure the consistency of international positions towards a just peace and human rights. The Arab human rights movement will apply this standard in its relations with the different international organizations and actors.

 

The Conference declares its full support for the right of the Palestinian people to self-determination and to establish their independent state on their occupied national soil --with Jerusalem as its capital-- and the right of return for the refugees and to compensation in accordance with UN resolutions. The Conference demands the dismantling of settlements, the elimination of all forms of racial discrimination and human rights violations against the Arabs of Israel, and the elimination of the racist zionism and the expansionist nature of Israel.

 

The establishment of a just peace requires the immediate and unconditional withdrawal of Israel from the Golan Heights and South Lebanon in accordance with UN Security Council resolutions.

 

Meanwhile, the Conference calls upon the contracting parties of the Fourth Geneva Convention on the Protection of Civilian Persons in Times of War to fulfill their legal obligations and to work towards compelling the Israeli occupation forces to apply the provisions of the Convention, considering that these provisions constitute the minimum standards required for the protection and safety of Palestinian civilians. In this regard, the Conference affirms that it is necessary that the High Contracting Parties comply with the UN General Assembly resolution to hold a special conference of the High Contracting Parties on July 15th, 1999, to examine the measures required for the enforcement of the provisions of the Convention in the occupied territories. The Conference also calls upon international and Arab NGOs to join the international campaign to urge the High Contracting Parties of the Fourth Geneva Convention to work towards enforcing its provisions in the occupied territories.

 

The Conference values the positions of NGOs and states in support of the rights of the Palestinian people and the position of the European Union among them -- especially the EU’s refusal to recognize the Israeli stance on Jerusalem. The Conference also hails the European Commission’s recommendation to embargo the goods produced in the Israeli settlements and calls upon all states to adopt similar positions.

 

The Conference urges the Palestinian National Authority to respect human rights, to establish the separation of powers, to dissolve State Security Courts, and to release political prisoners.

 

In discussing the issue of minorities in the Arab world, the Conference affirms its commitment to the right to self-determination and its strong condemnation of all acts of oppression, despotism and war that have been and are still being committed against minorities in the Arab world, especially genocide, displacement and enslavement. The Conference affirms that the Arab human rights movement will treat such actions as crimes against humanity.

 

In this context, the Conference declares its support for the Kurdish people’s right to self-determination and calls upon the United Nations to convene a special international conference with the participation of all the concerned parties to reach an integrated and comprehensive solution to the continued suffering of the Kurdish people.

 

The Conference also calls for an end to the war in Sudan and urges the establishment of peace within the framework of a formula that ensures the establishment of a democratic system of political plurality, participation in public life, and respect for human rights without discrimination between citizens -- including securing the right of the citizens of South Sudan to self-determination.

 

 

The General Conditions of Human Rights

in the Arab World

 

Despite the relative relaxation in the human rights situation in a number of Arab countries, the general picture remains gloomy in comparison with the progress realized in other parts of the world. This is exacerbated by the failure of the League of Arab States to provide an effective regional conflict-resolution system and mechanisms for the protection of human rights in the Arab world.

 

The Conference expresses its alarm at the continued absence of a modern legal structure in a number of Arab countries. This includes the lack of a constitution, a parliament and a modern judicial system, in addition to their persistent rejection of international human rights standards. This applies to Saudi Arabia and a number of Gulf states.

 

The Conference discussed at length the continuation of acts that completely suppress fundamental rights and freedoms and the persistence of legal systems based upon the codification of cruelty and violence in Iraq, Libya, Syria, Sudan and Bahrain. This is despite their accession to some of the most fundamental international human rights conventions and agreements. The Conference also discussed the prevalence in these countries of grave and flagrant human rights violations that can not be accurately monitored because of the absence of the minimum requirements for fact-finding.

 

The conference draws attention to the fact that acts of external aggression and military or economic violence against Iraq and Libya further aggravate the human rights situation there.

 

The Conference affirms that the acts of violence and armed internal conflicts, as in Somalia and Sudan, constitute in themselves a grave violation of the rights to life, physical integrity, life in peace and all other rights.

 

While expressing its concern at the situation in Algeria since the cancellation of elections in 1992, the Conference strongly condemns the crimes and massacres committed by armed groups and military militias against tens of thousands of citizens. The Conference also condemns the grave human rights violations committed by the state, specifically the enforced disappearance of thousands of people.

 

The Conference examined the human rights situation in the other Arab countries, which are characterized by defects in the rule of law and in institutional, legislative and other safeguards for the enjoyment of human rights and fundamental freedoms, in addition to infringements of the principle of the independence of the judiciary. These conditions lead to grave and systematic violations of human rights, especially the crime of torture. The Conference regrets the reversal in some countries, which had realized some relative improvement in the condition of human rights, such as Tunisia, Egypt, Yemen and Jordan.

 

The Conference welcomes the relative progress in the general human rights situation in Morocco in the last decade, due to the efforts of the Moroccan and international human rights organizations.

 

In this respect, the Conference affirms the following:

1- Generating pressure to reform and upgrade the institutions of the League of Arab States and to achieve the legislative and practical reforms necessary for safeguarding human rights and for ensuring the participation in and monitoring of these institutions by Arab citizens.

 

2- Calling upon the League of Arab States to review all its conventions relating to human rights -- especially the Arab Agreement on Combating Terrorism-- and also to review the Arab Charter of Human Rights of 1994, with a view to drafting a new Arab convention on human rights, in cooperation with Arab human rights NGOs, so as to make it compatible with international standards. The Conference decided to form a working group to prepare a draft proposal for such a convention.

 

3- Generating pressure to reform the legislations of Arab countries, especially those contravene the freedoms of opinion, expression, and dissemination of information and the right to knowledge. Working towards ending the state’s control of all media, and demanding that Arab governments legalize, in the framework of democratic constitutions and laws, the rights of assembly and peaceful association for all intellectual and political groups and forces, including the unarmed political Islamic groups.

 

4- Calling upon all political Islamic groups to renounce violence and to end its practice, and calling upon the intellectual and political community and forces to abstain from practicing intellectual terrorism through calling others apostates or traitors or defaming their characters.

 

5- The need to initiate substantial political reforms in Iraq leading to a democratic system and constitution that would bring about the equality of citizens, abolish political confessionalism, allow for diversity as a basis of national unity according to the principle of equality in citizenship, and enshrine fundamental human rights.

 

6- Calling for an end to the exceptional situation in Sudan and for convening a comprehensive constitutional conference with the participation of all the political and civil forces so as to ensure the restoration of democracy and peace.

 

7- Calling for the consolidation of the political reforms begun in 1989 in Algeria so as to prepare the ground for ending violence and laying down arms; releasing those detained without trial; retrying those who had been tried under exceptional laws; revealing the fate of the “disappeared”; and bringing those responsible for the crimes of disappearance, torture and killing to justice. The Conference stresses the need for governments to respond to just and legitimate initiatives for opening a serious dialogue to establish peace and broaden public freedoms.

 

 

Responsibilities of the Arab Human Rights Movement

 

1- Promoting the struggle for democracy and basing the general strategy of the movement on such a task. The Conference affirms that the aims of preserving the non-partisan nature of the movement and ensuring its independence from political parties do not exclude working towards a constant dialogue between human rights organizations and all political parties. Such a dialogue should aim at cooperation to consolidate democratic transformation and respect for human rights, and to draft a code of minimum standards for the respect of human rights and democracy that takes into consideration the specific political and social context of every single country.

 

2- Determining the common priorities of the Arab human rights movement in the realms of advocacy and protection. These include the following:

* Putting a final end to the practice of torture, and pursuing its perpetrators and bringing them to justice.

* Annulling martial and emergency laws, and affirming the need to respect freedoms of expression, assembly and association.

* Ending administrative and preventive detention and releasing all prisoners of conscience and those detained without charge or trial.

* Opposing exceptional courts, campaigning for laws and safeguards which guarantee the independence of the judiciary from any administrative manipulation or intervention.

* Introducing necessary reforms to the basic laws, revoking exceptional laws, and putting an end to arbitrary and extra-judicial executions or those resulting from unfair trials.

 

3- Struggling for the realization of economic and social rights, considering that human rights are integrated, indivisible and are not exchangeable. In this respect the Conference affirms:

* Securing citizens’ right to participation, including guaranteeing public oversight of the public revenues of the state, is the backbone of the application of the right to development.

4- Struggling for entrenching the values of human rights in the Arab and Islamic culture. This includes the following:

* Urging those Arab governments that did not ratify international human rights instruments to do so immediately and without reservations, and urging those that ratified them to lift their reservations, and to comply to the provisions of such instruments regarding the mechanisms of protection.

* Urging academics, researchers and religious scholars to shed light on the roots of human rights in the Arab culture, to exhibit the contribution of the Islamic civilization in establishing the values of human rights, and to dismantle the artificial contradictions between some human rights principles and some obsolete fundamentalist interpretations. Calling upon all Arab intellectuals and politicians to refrain from entangling Islam in a confrontation with human rights, and to consider those rights provided by international human rights law as a minimum to build upon and not to seek to reduce or call for their violation in the name of specificity or any other pretext.

 

5- Struggling for the recognition of women’s rights as an integral part of the human rights system. This includes the affirmation of the following:

* Women’s enjoyment of human rights is an integrated and comprehensive process that should encompass all facets of life within and outside the family.

* Real equality between women and men goes beyond legal equality to encompass changing the conceptions and confronting the stereotypes about women. Thus, it requires not only a comprehensive review of laws, foremost of which are personal status codes, but also the review and upgrading of educational curricula as well as the critical monitoring of the media discourse.

* In this respect, the Conference stresses the necessity of engaging women’s and human rights NGOs in the process of reviewing current legislations and in upgrading civil and criminal laws, with a view to resolutely confronting all forms of violence and discrimination against women.

* The Conference also calls upon the Arab governments that did not ratify the Convention on the Elimination of All Forms of Discrimination Against Women to do so expeditiously, and those that ratified it to lift their reservations.

* It also calls upon women and human rights NGOs to work to refute these reservations, to challenge the culture of discrimination, and to adopt courageous stances in exposing the practice of hiding behind religion to legitimize the subordination of women. These NGOs should also give special attention to the continued monitoring of the compliance by Arab governments to their international commitments concerning women’s enjoyment of their rights.

* The necessity of considering the possibility of allocating a quota for women in parliaments, representative institutions and public bodies as a temporary measure. This should stand until appropriate frameworks for women’s voluntary activity take shape and until the awareness of the necessity of equality and the elimination of all forms of discrimination increases.

 

6- Confronting the violations of the rights of the child in the Arab world, specially those emanating from economic sanctions, the aggravation of armed conflicts in some countries, and the increase in the phenomena of street children and child labor. In this respect the Conference calls for the following:

* Criminalizing the engagement of children in armed conflicts, and supporting efforts aimed at raising the minimum age of military conscription to 18 years.

* Prohibiting the employment of children in occupations that may harm their health, security or morals.

* Prohibiting the implementation of capital punishment in crimes committed by children under 18 years of age; this is until the abolition of capital punishment entirely.

* Prohibiting the confinement of children in the detention places of adults.

 

7- Disseminating human rights education and culture on the basis that the first line of defense of human rights is citizens’ awareness of their rights and their readiness to defend them. In this respect, the Conference has decided on the following:

* The need to overcome all obstacles preventing access to the fora provided by the media and the educational institutions to disseminate the message of human rights. It is necessary to try by all means to convince governments to facilitate the work of human rights education institutions, to add the subject of human rights to the educational curricula, and to uproot all that contravenes the values of human rights from the current curricula.

* Consolidating cooperation with the fora of artistic creativity and other non-governmental organizations in the realm of disseminating the culture of human rights, and focusing on some intermediary strata that could be able to play a vital role in this sphere, such as teachers, media personnel, judges and lawyers. In addition, it is necessary to design suitable plans to activate the role of preachers in mosques and churches in this respect.

 

8- With respect to upgrading and advancing the capabilities of the Arab human rights movement, the Conference draws attention to the signs of substantial developments in international criminal justice manifested by the opening for ratification of the Convention on the International Criminal Court, and also the possibility of bringing to justice the torturer Pinochet. The Conference affirms that such developments open the door to the possibility of trying war criminals and perpetrators of crimes against humanity. This necessitates that human rights defenders develop new methodologies and tools to collect and document information that could be used as evidence before such trials.

 

9- Protecting human rights defenders and their rights to receive information, hold meetings, contact all the concerned sides, and make use of local and international law to defend human rights.

 

In this respect, the Conference

* Absolutely condemns all the reservations made by 13 Arab states to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms;

* Affirms that the conduct of any Arab government toward human rights defenders will be the determinant by which, negatively or positively, the Arab human rights movement will deal with it;

* Stresses that it is necessary for human rights defenders to commit themselves to the professional standards and political neutrality, which require defending the victims of human rights violations regardless of their political or ideological affiliations. It is also necessary that human rights defenders apply the rules of democratic review established in the structures of civil associations and exercise complete transparency regarding their financing sources and expenditures. The Conference considers that the commitment to these principles is consistent with the very essence of the task of defending human rights. This calls for the founding of a body to represent civil society in overseeing the performance of human rights NGOs and their commitment to these standards.

 

10- Coordination between the Arab human rights NGOS:

The Conference affirms that the minimum standard required for the fulfillment of these responsibilities and recommendations necessitates the elevation of bilateral and collective cooperation between Arab human rights NGOs to the highest level. Given the lack of national and regional coordination mechanisms and structures on the local and regional levels, the Conference considers these tasks of utmost importance. There is an urgent need for reviewing the present structure of relations between its components on the local, regional and international levels, taking into consideration the quantitative and qualitative developments of the human rights movement in the South. The movement should strive to found a new international mechanism based on continuous and dynamic consultation to promote the relationships of partnership and parity among its components. This is to help further the effectiveness of the movement on the international, regional and local levels.

 

Press Release Issued by Amnesty International

 

 

Service: 091/99

AI Index: MDE 15/37/99

11 May 1999

 

 

PUBLIC STATEMENT

 

 

AMNESTY INTERNATIONAL CALLS ON HIGH CONTRACTING PARTIES TO TAKE MEASURES TO ENSURE ISRAEL'S RESPECT FOR THE FOURTH GENEVA CONVENTION

 

 

In a letter sent today to governments of states, including Israel, which have ratified the Geneva Conventions of 12 August 1949, Amnesty International urged all to attend the conference of High Contracting Parties to the Conventions called for July and to consider enforcement measures to ensure that Israel respects its obligations under the Fourth Geneva Convention.

 

In a resolution of 8 February 1999 the United Nations General Assembly recommended that the High Contracting Parties convene a conference on 15 July 1999 on measures to enforce the Convention in the Occupied Palestinian Territories, including East Jerusalem.

 

“Grave breaches of the Fourth Geneva Convention including extrajudicial executions and other unlawful killings, systematic torture and unfair trials are being committed by the Israeli authorities against Palestinians,” Amnesty International said. “These grave breaches of the Fourth Geneva Convention are accepted and encouraged at the highest level of the Israeli Government.”

 

The Fourth Geneva Convention relates to the protection of the civilian population in time of war. Article 146 of the Convention places an obligation on the High Contracting Parties to enact effective penal sanctions for persons who have committed, or ordered to be committed, 'grave breaches' of the Convention. Article 147 defines “grave breaches” as “wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, wilfully depriving a protected person of the rights of fair and regular trial, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.'

 

In addition, Article 146 requires each High Contracting Party “to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and [it] shall bring such persons, regardless of their nationality, before its own courts”. If it does not do so, it must extradite such suspects to any other High Contracting Party on request if that state has sufficient evidence to commence a prosecution.

 

Israel's grave breaches of the Fourth Geneva Convention - raised frequently by

Amnesty International - include:

 

- Extrajudicial executions accepted as a means of eliminating opponents by the Israeli Government; a 1998 official report into an unsuccessful attempt to kill a Palestinian opposition leader in Jordan did not question this policy.

 

- Killings and woundings carried out at checkpoints, during demonstrations or in other circumstances when the lives of Israeli security services were not in danger. Israeli open fire regulations in use in the Occupied Territories breach international standards for the use of firearms.

 

- Torture practised systematically during the interrogation of hundreds of Palestinians every year, is effectively legalized. The use of treatment which constitutes torture is accepted as normal by Israeli courts and it is a ministerial subcommittee, which includes the Prime Minister, which decides what forms this torture should take.

 

- The sentencing of thousands of Palestinians before military courts where frequently the main evidence against the accused are confessions extracted under duress.

 

- Continuing use of administrative detention to detain Palestinians in circumstances where they have no trial and may not be allowed to know the full accusations against them.

 

In breach of Article 33 of the Fourth Geneva Convention civilians are consistently collectively punished for acts in which they may not have played any part; such collective punishments include the destruction of the houses of families of those who have participated in attacks on Israelis; the sealing of villages and the closures of areas under the jurisdiction of the Palestinian Authority. People have also been prevented from travelling to hospitals, as well as cut off from work and prevented from attending any activity outside the area, during blockades which are frequently imposed on the Palestinian areas during holidays (such as Purim, Passover and Israeli Independence Day) or after attacks on Israelis. The Beduin are some of those who have been subjected to forcible population transfers.

 

Amnesty International is concerned that the Israeli Government representative in the UN General Assembly condemned the initiative to convene a conference as a “political” decision which ignored the fact that 97 per cent of the Palestinians were under the jurisdiction of the Palestinian Authority. The Israeli representative said that the Israeli Government would not attend the conference.

 

In the letter sent to the Israeli Government, Amnesty International urged it to reconsider any such decision and to work to uphold the principles of humanitarian law. Notwithstanding the jurisdiction of the Palestinian Authority over 4 per cent of the West Bank and 97 per cent of the population of the West Bank, excluding East Jerusalem, the grave breaches of the Fourth Geneva Convention described above continue to be committed against thousands of Palestinians every year.

 

“Last year was the 50th anniversary of the Universal Declaration of Human Rights. In this year, the 50th anniversary of the four Geneva Conventions, when armed conflicts are endangering the lives and safety of civilians in every continent, we should make it our objective to uphold these principles of respect for the human being and to protect of the civilian populations caught up in wars and armed conflict.

 

“If the High Contracting Parties accept the erosion of the principles defined for the protection of civilian populations in time of war, the future prospects for upholding humanitarian principles and protecting human rights throughout the world will be grim indeed,” said Amnesty International.

 

Background

 

There are 188 High Contracting Parties to the Geneva Conventions, including Israel, which signed the conventions on 8 December 1949 and ratified them on 6 July 1951. Israel has stated that it does not regard the Geneva Conventions as applying de jure to the West Bank and Gaza Strip, territories occupied in 1967, though it has repeatedly affirmed that Israel would respect in practice its “humanitarian provisions”, without clearly specifying what provisions it regards as “humanitarian”.

 

The International Committee of the Red Cross and the United Nations have consistently maintained that the Convention fully applies to the Occupied Territories and that the Palestinians are a protected population under the terms of the Fourth Geneva Convention.

 

The General Assembly resolution of 8 February 1999 was followed by a Presidential Statement on 12 February 1999 from the UN Security Council on the Protection of Civilians in Conflict. The Statement expressed “concern over the widening gap between the rules of international humanitarian law and their application” and called upon all parties concerned to comply strictly with their obligations under international law, in particular their relevant obligations under the Hague Conventions, the Geneva Conventions of 1949 and Additional Protocols of 1977.

 

For further information, please call the Press Office at Amnesty International: +44 171 4135566

 

Press Release Issued by Afro-Asian Peoples’ Solidarity Organization

 

 

 

 

Press Release Issued by Afro-Asian Peoples’ Solidarity Organization

On the Conference of the High Contracting Parties to the Fourth Geneva Convention

 

 

Press Release Issued by Human Rights Watch

 

 

 

 

Press Release Issued by Amnesty International

 

 

News Service: 135/99

AI INDEX: MDE 15/47/99

15 July 1999

 

Fourth Geneva Convention meeting: an abdication of responsibility

 

Amnesty International is appalled by a 10-minute meeting of High Contracting Parties to the Geneva Conventions, convened today in Geneva, which failed to consider enforcement measures to ensure that Israel respect its obligations under the Fourth Geneva Convention.

 

The High Contracting Parties have only met to decide to defer their responsibilities. It is a supreme irony that, on the 50th anniversary of the Geneva Conventions, a conference that was set up to bring back to the limelight the plight of the protected population in the Occupied Territories lasts only 10 minutes. Today marks a scandalously missed opportunity to reaffirm international humanitarian law.

 

Resolution ES-10/6, adopted by almost all members of the UN General Assembly on 8 February 1999, called for the convening of this meeting of High Contracting Parties to consider enforcement measures. At todays meeting the High Contracting Parties failed to demonstrate a serious commitment to ensure protection for people in the territories occupied by Israel in particular, and to ensure compliance with international humanitarian law in general.

 

Israel, as a High Contracting Party, has been violating the Fourth Geneva Convention for more than 30 years, when it carries out wilful killings extrajudicially, when it tortures or when it indiscriminately uses force, Amnesty International said. The High Contracting Parties themselves, however, have violated their obligation enshrined in Article 1 of the Convention, to ensure respect for the Fourth Geneva Convention.

 

Instead of studying ways to enforce compliance with the obligations of the Convention, the meeting was a simple procedural one and was concluded after 10 minutes. Even worse, it set no date for a substantive discussion and decisions on enforcement measures, confining itself to the postponement of the meeting sine die. The meeting will be reconvened only in the light of the developments in the humanitarian situation in the field.

 

If the resolution adopted by the General Assembly is not to remain simple lip service, it is imperative that the meeting of High Contracting Parties be reconvened before the end of the year, and that the question of enforcement measures be addressed in order to lead to concrete steps.

 

ENDS.../

 

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For more information please call Amnesty International's press office in London, UK, on 44 171 413 5566 or visit our website at http://www.amnesty.org

 

 

 

Position by Israeli Human Rights Organizations on occasion of the planned conference on 15 July regarding the Implementation of the Fourth Geneva Convention in the Occupied Territories

 

 

 

 

 

 

 

UNITED NATIONS SESSION ON CONVENING A CONFERENCE ON THE MEASURES FOR IMPLEMENTING THE FOURTH GENEVA CONVENTION IN THE OCCUPIED PALESTINIAN TERRITORIES, INCLUDING JERUSALEM

 

Organized under the auspices of the Committee on the Exercise of the Inalienable Rights of the Palestinian People

 

Cairo, 14 and 15 June 1999

 

 

 

 

 

 

 

 

The Statement of the U.N Secretary-General Mr. KOFI ANNAN

 

 

 

 

 

 

 

 

 

 

 

The Statement of MR. SAYD EL-MASRY Assistant Foreign Minister for Multilateral Affairs; Representative of the Host Country

 

 

 

 

The Statement of Ambassador TAHER SHASH The Legal Advisor to the Arab Organization for Human Rights; Former Under Secretary for Foreign Affairs, Cairo

 

 

 

 

 

The Statement of Mr. FAROUK ABU-EISSA Secretary – General Arab lawyers Union, Cairo

 

 

 

Statement of DR. AHMED HASSAN AL-RASHEDI Professor of International Law Faculty of Economic and Political Sciences, University of Cairo

 

 

 

 

 

 

The Statement of DR. JORDAN PAUST Professor of Law, University of Houston, Texas

 

 

 

 

 

The Statement of DR. HILAIRE McCOUBREY Director of Postgraduate Affairs Hall University Law School

Hall, United Kingdom

 

 

 

 

 

 

 

CAIRO INTERNATIONAL MEETING ON FOURTH GENEVA CONVENTION ADOPTS

 

The Concluding Statement