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 15^th 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 4^th 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 55^th 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

 

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 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?

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 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.

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.

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.

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:

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.

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.

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 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 15^th 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.”

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 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.

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.

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.

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.

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.

4^th June 1998

On June 5^th, 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 IV^th 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 IV^th 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 IV^th 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 13^th 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 4^th 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 IV^th Geneva Convention to those territories. Several key points to this discussion follow.

First, the IV^th 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 4^th 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 IV^th 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 IV^th 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 IV^th 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 29^th 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 27^th 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 9^th and 11^th 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.

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.

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.

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.

2.1 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.

3.1 The agreed final status of the Occupied Palestinian Territories or a new declaration of Palestine statehood will have no effect on the existence of a state of belligerent occupation in the Gaza Strip and the West Bank, including Jerusalem, for so long as Israel continues to exercise any of the functions of government therein.

3.2 Statehood is not inconsistent with belligerent occupation. Rather it is typical that when territory is under occupation, there is sovereign power, even though that sovereign power is, temporarily, deprived of the possibility of exercising control over the territory.

3.3 The case of the occupied Palestinian territories is more complex, because during the time of occupation, Jordan renounced its claim to the West Bank and the PLO declared statehood in 1988. There is no reason, however, why, during an occupation sovereignty may not change, or sovereignty that was unclear might become clear.

3.4 The concept of control should not be confused with the concept of sovereignty. Control and sovereignty are distinct in a situation of belligerent occupation. Palestinian statehood, whether beginning in 1988 or 1999, does not affect the status of the territory as being under belligerent occupation. Belligerent occupation ends when the Occupying Power ceases to exercise or control any of the functions of the government in the occupied territories.

3.5 Protected persons who are in occupied territories shall not be deprived, in any case or in any manner whatsoever, of the benefits of Geneva IV by any change introduced, as result of the occupation of a territory, into the institutions or government of the said territory by the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory (Geneva IV, Article 47).

3.6 The Final Status Agreements have no impact on the application of Geneva IV nor has the latter Convention any impact on the final status of the occupied Palestinian territories.

 

 

1. The Advisory Meeting of Experts recommend that cognizance be taken of the following:

1.1 There can be no derogation from Geneva IV;

1.2 That whatever the legal status of the DOP and subsequent agreements, Geneva IV takes precedence;

1.3 That Geneva IV remains applicable throughout the West Bank (including East Jerusalem) and the Gaza Strip, thus Israel remains accountable for its actions to the extent that it exercises the functions of government in the Occupied Palestinian Territories. This accountability extends to actions committed by the Palestinian Authority under Israeli duress which amount to breaches of the Convention.

 

2. Accordingly it is further recommended:

2.1 That any arrangements or initiatives in relation to the Occupied Palestinian Territories must be fully in accordance with Geneva IV, and must recognize that the application of the Convention is non-negotiable. Accordingly meetings such as that held between Israel, the PLO, Switzerland (the depository for the Conventions), and the ICRC on 9 – 11 June 1998 (generally referred to as the ‘quadripartite meeting’), convened by the depository in response to UNGA Res. 10/4 of 13 Nov. 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;</