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"As is" reference - not a United Nations document

Source: PLO/Palestine
15 July 1999
Israel's Belligerent Occupation of the Palestinian Territory, including Jerusalem and International Humanitarian Law












Paper presented to the

Conference of the High Contracting Parties to the Fourth Geneva
Convention on Measures to Enforce the Convention in the
Occupied Palestinian Territory, including Jerusalem

15th July 1999 Geneva

Prepared by the Permanent Observer Mission of Palestine to the United Nations, New York

Table of Contents






1. Background on International Humanitarian Law 5 2. International Humanitarian Law: Some Articles

Relevant to Israel's Belligerent Occupation of the Palestinian


3. The 4th Geneva Convention and the Occupied 4. Policies and Practices of Israel, the Occupying Power,
5. Background on the Conference of the High Contracting Parties
Introduction




In the course of the armed conflict that erupted in the Middle East in June of 1967, the Israeli military occupied the remainder of the territory allocated to the Arab State under the partition plan in U.N. resolution 181 (II) of 1947. This territory also constituted the remainder of Mandated Palestine and comprised the West Bank, including East Jerusalem, which was under Jordanian control, and the Gaza Strip, which was under Egyptian administration. The lines of these areas were defined as such by the 1949 Armistice Agreements that were concluded between Israel and Jordan and Egypt respectively. The Israeli military also occupied the Egyptian Sinai Peninsula and the Syrian Golan Heights. Israel, thus, became a belligerent occupant of those territories and the relevant instruments of international humanitarian law became applicable with respect to the governance of the occupation of these territories, the conduct of the occupying Power and to the civilian population, who thereinafter became "protected persons."

Following the war, the U.N. Security Council adopted resolution 242 of 22 November 1967, which emphasized the international law principle of "the inadmissibility of the acquisition of territory by war" and which affirmed that peace in the Middle East should be based on the "withdrawal of Israel armed forces from territories occupied in the recent conflict" and the "termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force." This resolution, along with the principle of returning the land in exchange for peace (land for peace) which was embodied in it, became the basis of the Middle East peace process. Until now, however, the Palestinian Territory, including Jerusalem, remains under Israeli occupation.

The relevant instruments of international humanitarian law that apply to the territories occupied by Israel in 1967, including Jerusalem, are: The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949, Additional Protocol I of1977 and the Regulations Annexed to the Hague Convention No. TV respecting the laws and customs of war on land of 1907. An international consensus exists among States, as well as the International Committee of the Red Cross (ICRC), that the Fourth Geneva Convention of August 12, 1949 relative to the Protection of Civilian Persons in Time of War (as well as the Hague Regulations of 1907) is fully applicable to all the territories occupied by Israel in 1967. As such, the entire international community (except the occupying Power) considers the Palestinian Territory, including East Jerusalem, along with the other Arab territories occupied by Israel in 1967, to be "occupied territories" subject to international humanitarian law.

The U.N. Security Council has confirmed the applicability of the 4th Geneva Convention to the Occupied Palestinian Territory, including Jerusalem, in 25 resolutions. Many of those resolutions call upon Israel, the occupying Power, to comply with the provisions of the Convention and to accept its de jure applicability. The General Assembly, along with other bodies of the U.N., has adopted scores of resolutions affirming the same position, as well as calling for an end to the occupation and repeatedly affirming the inalienable rights of the Palestinian people and the need for the realization of those rights.

Israel, however, refuses to accept the de jure applicability of the 4th Geneva Convention to the Occupied Palestinian Territory, including Jerusalem and has committed serious violations of every relative provision of the Convention. At the start of the occupation, Israel, the occupying Power, immediately began imposing countless repressive measures, such as administrative detention, deportation, home demolitions and other forms of collective punishment, against the Palestinian civilian population in the Occupied Palestinian Territory, inflicting enormous suffering and harm on them.

The occupying Power has also attempted to change the status of the occupied territory or parts of it and to change the demographic composition of the territory through the illegal confiscation of land and the transfer of Israeli civilians. The occupying Power has repeatedly attempted to justify many of these measures by citing its security considerations or military needs. For years, the Israeli Government claimed that the illegal Jewish settlements were built to serve security needs and considerations. In reality, however, the occupying Power has been driven by an expansionist vision or ideology and, using its enormous military capabilities and a complex system of economic, legal and administrative policies and practices, has fervently pursued the implementation of this vision. Another fundamental aim of the occupying Power has been to prevent the realization of Palestinian national rights. The result of these measures has in fact been a gradual change in the situation in the Palestinian territory to that of one under active colonization.

Numerous Security Council and other U.N. resolutions have dealt with specific serious Israeli violations of the 4th Geneva Convention and other acts contrary to its provisions, such as settlements; measures related to Jerusalem; deportations; indiscriminate shooting of civilians and collective punishment. The resolutions all condemn such illegal Israeli actions and call for their cessation and for full Israeli compliance with the provisions of the Convention and the terms of those resolutions. In several of these resolutions, the Security Council has called for measures to provide for the safety and protection of the Palestinian civilian population and requested the U.N. Secretary-General to fulfill certain tasks in this regard.

The international community, including through U.N. resolutions, has consistently and repeatedly rejected Israel's claims and its policies and practices in the occupied territory. In 1968, the General Assembly established the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and other Arabs of the Occupied Territories, which, in spite of Israel's refusal to cooperate, has submitted periodic reports to the General Assembly throughout each session. Further, in 1993, the Commission on Human Rights appointed a Special Rapporteur for the Occupied Territories and again Israel refused to cooperate.

The Israeli occupation of the Palestinian Territory, including Jerusalem, and the policies and practices of the occupying Power in this regard represent a unique case for several reasons. Primarily, the occupation is unique because of the multiplicity and intensity of Israel's grave breaches, breaches and serious violations of the 4th Geneva Convention and other acts contrary to its provisions, all of which have caused the Palestinian civilian population immense suffering. In fact, Israel's policies and practices represent systematic and even institutionalized violations of international humanitarian law.

Secondly, those breaches and other acts have continued for an extensive period of time, almost 32 years, in total disregard for the clear position of the international community and in blatant violation of many Security Council and other U.N. resolutions. Thirdly, the Israeli occupation is unique because it has effectively transformed the situation in the Occupied Palestinian Territory, including Jerusalem, from one of "normal" occupation to one of active expansion and annexation, i.e. colonization, of the Palestinian land and has denied the legitimate national rights of an entire people. This situation continues even as the 20th century comes to a close and at a time when the phenomenon of colonization has long been deceased in other parts of the world.

In response to Israel's continuing illegal policies and measures in the Occupied Palestinian Territory, the international community has recently taken additional steps to reassert its position. In this regard, on 24 April 1997 the U.N. General Assembly convened, for the first time in fifteen years, the 10th Emergency Special Session (a rare procedure based on U.N. resolution 377A (V) of 1950 entitled "Uniting for Peace") to consider illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory. The 10th ESS recommended to the High Contracting Parties to the 4th Geneva Convention to 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. This represents the first time in the history of the Convention that such a call for a conference on a specific situation has been made. On 9 February 1999, in its fifth resumption of the 10th session, the Assembly further
recommended that a conference be convened on 15 July 1999 at U.N. headquarters at Geneva. The resolutions adopted by the session have repeatedly affirmed the responsibility of the High Contracting Parties to respect and ensure respect for the Convention.

In this regard, the Conference of the High Contracting Parties to the Fourth Geneva Convention on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, will hopefully represent a decisive step in ensuring respect by Israel, the occupying Power, of the 4th Geneva Convention and in reversing its illegal actions. The Conference will also, hopefully, serve as a step in ensuring universal respect for the Convention and broad compliance with international humanitarian law in all circumstances.

Background on International Humanitarian Law


International humanitarian law, also known as the International Law of Armed Conflict, dates back to the 1860s, during which two international conferences were convened to conclude treaties on specific aspects of war. The main goal of both of these conferences was to institutionalize the previously elusive customary rules of warfare. In order to eliminate any uncertainties as to scope and content, the participating States hoped to negotiate agreed texts of the rules and incorporate them in internationally accepted and binding instruments, otherwise known as treaties, conventions or protocols.

The inspiration behind such agreements was respect for humanity, and the primary aim was to protect all victims of war without any discrimination - be they civilians or injured military personnel. The fundamental principle upon which international humanitarian law is based is expressed as follows: in any armed conflict, the right of the parties to the conflict to choose methods or means of warfare is not unlimited. This type of law governs the relationship between the individual and the enemy, as opposed to that between die individual and his own State, which is governed by human rights law.

The first conference on international humanitarian law was held in 1864 in Geneva, Switzerland on the fate of wounded soldiers on the battlefield. The second convened in St. Petersburg, Russia in 1868 to prohibit the use of explosive rifle bullets. These two conferences spawned two distinct, although not exclusive, trends in the law of armed conflict, each characterized by its particular perspective. The first such trend was known as the "law of Geneva", which was concerned with the condition of war victims who had fallen into enemy hands, such as prisoners of war or interned civilians. The second was known as "the law of The Hague", which related to the conduct of war proper, as well as its permissible means and methods.



The Geneva Law

The Geneva Conventions, the scope of which was developed and completed over a period of almost one century, have their roots in the mid 19th century, during which concern grew for the circumstances of wounded soldiers on the battlefield. Care for and treatment of the wounded was primitive and insufficient and, worse yet, the Napoleonic wars had effectively ended the customary practice of sparing the enemy's field hospitals and of leaving both the wounded and medical personnel unharmed. These wars witnessed the shelling of hospitals and hesitation by aid personnel to attend to the wounded.

Following the war, a Swiss businessman, J. Henry Dunant, initiated two steps intended to change the prevailing situation: the creation of a national private aid organization to assist military medical services and the conclusion of a treaty that would both facilitate the work of these organizations and guarantee better treatment for the wounded. Accordingly, the "International Committee for Aid to the Wounded" (later renamed the "International Committee of the Red Cross" — ICRC) was created in 1863 to facilitate both of these goals. National aid societies were soon established in various countries, under the name of Red Cross or Red Crescent Societies.

The drafting of the treaty followed in 1864 at a diplomatic conference convened at the invitation of the Swiss Government in Geneva. On 22 August 1864, the Conference adopted the "Convention for the Amelioration of the Condition of the Wounded in Armies in the Field." The main principles established in the Convention were the following: all medical personnel, establishments, institutions are considered neutral; the wounded and sick combatants are to be collected and cared for and all hospitals and medical tools are to be distinguished by a flag or armlet bearing "a red cross on a white ground." This conference represented the first step in the development of the "law of Geneva."

In 1899, another treaty was concluded which rendered the principles of the 1864 treaty applicable to the "wounded, sick and shipwrecked at sea". In 1906, the 1864 Geneva treaty was revised and, in 1907, the 1899 treaty was adjusted to the 1906 revision. In 1929, following World War I, the ICRC initiated a diplomatic conference in Geneva that adopted a significantly improved treaty on the treatment of the wounded and sick on land. The conference also adopted another separate Convention on the treatment of prisoners of war. This treaty expanded the circle of persons protected under the law of Geneva. While rules related to prisoners of war already existed and had been incorporated in the 1899 Hague Regulations on Land and Warfare, the circumstances brought about by World War I highlighted the need for more specific regulations for such protection.

The law of Geneva was again revised and further developed following the events of the Spanish Civil War and World War II. The Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War was convened in Geneva in 1949 from 21 April to 12 August 1949, during which the three Conventions in force (one of 1907 and two of 1929) were substituted by new, improved and expanded Conventions. For example, the category defining prisoners of war was expanded to include members of organized resistance movements. The 1949 Conference also created an entirely new Convention - the Convention relative to the Protection of Civilian Persons in Time of War. The aim of this Convention was to protect two particular categories of civilians: firstly, enemy civilians in the territory of a belligerent, and secondly, the inhabitants of occupied territory (i.e. civilians who, as a consequence of the armed conflict, find themselves in the power of the enemy).

Another innovation produced by the 1949 Diplomatic Conference, as a result of the Spanish Civil War, concerned the applicability of the Conventions. The Conference decided that the Conventions would continue to apply in their entirety to international armed conflicts. At the same time, the Conference also introduced into all four Conventions of 1949 a common Article 3 which rendered the Conventions "applicable in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. " This development was seen as a tremendous step in addressing the situation of internal armed conflict.

As a result of the 1949 Conference, the law of Geneva came to be comprised of four Conventions:
I. Geneva Convention for the Amelioration of the Condition of the Wounded & Sick in Armed Forces in the Field, of August 12, 1949.
II. Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of August 12, 1949 (based on 1907 Hague text)
III. Geneva Convention relative to the Treatment of Prisoners of War, of August 12, 1949 (143 articles, as well as Annexes - based on 1929 Convention)
IV. Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949

All four Conventions contain common provisions that are practically identical and can be categorized under three headings:
(1) General Provisions: 12 Articles at the beginning of each Convention that outline the applicability and the mode of application and provide provisions about duration, special agreements, the inalienability of the rights of protected persons, the duties of the Protecting Parties and the activities of the ICRC.
(2) Repression of Breaches of the Conventions: Articles, which, inter alia, impose penal sanctions for breaches of the Convention.
(3) Final Provisions: Articles that define the procedure for signature, ratification and entry/accession into the Conventions.



Protocols Additional to the Geneva Conventions

The Geneva Conventions, as well as the Hague law, were later supplemented by the two Additional Protocols of 1977, which aimed to limit the use of violence and protect the civilian population by strengthening the rules governing the conduct of hostilities. The development of these Protocols came in response to debates, primarily at the United Nations, on the rules of combat (The Hague), the protection of victims of war (The Geneva law) and the necessity of reaffirming and developing the provisions protecting the victims of armed conflict and of supplementing the measures intended to reinforce their application. This debate culminated in Geneva in 1974 at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts.

Following four yearly sessions (1974-77), the Conference drafted two treaties entitled The Protocols Additional to the Conventions of Geneva of 1949 - Protocol I concerned the protection of victims of international armed conflicts and Protocol II concerned the protection of victims of internal armed conflict. The Conference adopted the Protocols on 8 June 1977 and they came into effect on 7 December 1978. The Protocols of 1977 are considered a very important contribution to the law on armed conflict, particularly as they reaffirm the customary law principle, hitherto unstated in treaty form, that the civilian population should not be made the subject of attack. Additional Protocol I also made it clear that the sphere of application of the Convention, as well as the Protocols, includes "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination ..." (Art. 1).


The Hague Law

Like the law of Geneva, the development of the "law of The Hague" dates back to the mid 19th century. The law originated in two distinct documents - "the Leiber Code" and "the Declaration." During the course of the American Civil War (1861-1865), the U.S. president promulgated an order which provided detailed rules on the entire range of land warfare, from the conduct of war to the treatment of the civilian and other categories of the population. This text became known as "the Instructions" or the "Leiber Code," as they were prepared by international lawyer Francis Lieber. The Leiber Code, although intended as a domestic document, became a model for later efforts to codify the laws and customs of war.

The Declaration (Declaration Renouncing the Use, in Time of War, of Explosive Projectiles...) was drafted in St. Petersburg in 1868 at a meeting of the International Military Commission, which met at the invitation of the Russian Government. An international treaty that focused on one specific aspect of the conduct of war, the Declaration of St. Petersburg addressed the recently developed light explosive projectiles after the Commission concluded that such weapons must be banned from use. The Declaration was based on the belief that "the progress of civilization should have the effect of alleviating as much as possible the calamities ofwar" and that "the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy. " These weapons were believed to "uselessly aggravate the sufferings of disabled men, or render their death inevitable. " As such, the use of the weapons would "be contrary to the laws of humanity." The Declaration also allowed for any further agreements in consideration of any developments in the science of war in order to maintain the principles of the Declaration and to "conciliate the necessities of war with the laws of humanity."

In 1899, at the invitation of the Russian Government, States again met to discuss matters of war and peace at The Hague. The goal of the First Hague Peace Conference was to create conditions precluding any further wars. Initially, the States hoped to achieve this by making it compulsory for States to submit their disputes to international arbitration and by holding periodic meetings to discuss problems related to the maintenance of peace. However, the idea of arbitration was not accepted. Instead, the participants discussed a number of proposals in light of the possibility of future armed conflicts. The conference adopted die text of a Convention with Respect to the Laws and Customs of War on Land, with annexed Regulations. The Regulations provided rules concerning aspects of war on land, including the definition of "belligerents", die treatment of prisoners of war, restrictions on means and methods of injuring the enemy, and restrictions on the behavior of the occupying Power. The Regulations were based directly on the Declaration of St. Petersburg and on the work of the International Military Commission of 1868.

In 1907, the Second Hague Peace Conference convened with the same goal as the first - ensuring international peace. That goal being unachievable, the Conference slightly revised the Convention and Regulations of 1899 and debated various issues related to naval warfare. The Conference adopted the Convention (DC) Concerning Bombardment by Naval Forces in Time of War, as well as two additional Conventions in the sphere of naval warfare. Following the Second Conference, the "law of The Hague" saw little significant development. World War I broke out and was followed by the establishment of the League of Nations, which demonstrated little interest in the law of war. The United Nations, established in the aftermath of World War II, showed little interest as well. The only significant action related to the development of that body of law was the adoption, by UNESCO, of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict in 1954.

The Current Situation

The Geneva Conventions have been ratified by 188 States (only two U.N. Member States are not parties), having thus achieved virtual universality. Despite their contractual nature, the Conventions reflect principles of customary international law and are therefore binding upon the entire community of nations. Additional Protocol I has been ratified by 153 States, while some countries, including the United States and Israel, have still not ratified it. The Hague Convention has been established as customary international law and is thus binding as well. In essence, international humanitarian law forms a significant part of international law that must be respected and complied with, particularly by parties to conflicts.


The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949

The Fourth Geneva Convention relative to Protection of Civilian Persons in Time of War, of August 12, 1949 is one of the most significant bodies of international humanitarian law and one of the major instruments of international law applicable to the Occupied Palestinian Territory, including Jerusalem, as well as the rest of the territories occupied by Israel in 1967. The Convention was created out of the humanitarian desire to draft a Convention for the protection of civilians. Such a body of law had not existed before World War II and is the first ever devoted exclusively to the protection of civilian populations. While the 4th Geneva Convention, which is considered to have acquired the status of customary law, constitutes an extensive development of the Hague Regulations of 1907, it also represents an innovation as it protects "persons taking no active part in the hostilities" and "who, at any given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party or Occupying Power of which they are not nationals" (Art. 3 & 4).

Since the main abuses of civilian human rights take place in occupied territories, the 4th Geneva Convention is primarily concerned with civilians in occupied territories and its primary goal is to protect civilians under the control of an enemy state against arbitrary action by that State. The Convention contains 159 Articles and 2 Annexes, which aim to "ensure the respect of human personality and dignity by putting beyond reach of attack those rights and liberties which are the essence of its existence. " It is based on die universally accepted principle requiring the parties to conflict to ensure that, despite occupation and war, the people living in an occupied territory continue to live in as normal a manner as possible and in accordance with their laws, cultures and their traditions. The Convention rests on the belief, as articulated in Article 27, that civilians, whether in occupied territory or not, are fundamentally "entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices and their manners and customs." The inviolability of such rights and benefits has been especially pronounced for persons in occupied territories.

• Violence to life and person, in particular torture, mutilations and cruel treatment
• The taking of hostages
• Deportations and transfers of civilians
• Pillages, reprisals and collective punishment
• Outrages upon personal dignity, in particular humiliation or adverse treatment
based on race, color, nationality, religion, beliefs, etc.

Article 2 defines the cases to which the Convention applies and Article 4 defines in detail the persons who can benefit from the Convention. Upon drafting the 4th Geneva Convention, States deliberately left the requirements for application as broad as possible so as to ensure civilians the most extensive protection possible. In this respect, the applicability of the Convention is based on the following central principle: all persons who find themselves in the hands of a belligerent State or occupying Power of which they are not nationals "at any given moment and in any manner whatsoever" axe protected (Art. 4). The 4th Geneva Convention contains provisions governing general treatment of this protected population and provisions specifying the rights and duties of the occupying Power with regard to the population of the territory it occupies.


Respect for the Convention

International humanitarian law does not allow for any derogation from the law on the basis of on any military, security or national rationales. This is because all instruments of international humanitarian law already give due consideration to military imperatives and reconcile military necessity with the demands of humanity. Moreover, the Fourth Convention specifically contains a number of concessions to State security and to requirements of national interest. The ICRC Commentary on the 4th Geneva Convention states that: "As soon as one of the conditions for application for which Article 2 provides, is present, no Contracting Party can offer any valid pretext, legal or otherwise, for not respecting the Convention in its entirety. ('In all circumstances') also means that the application of the Convention does not depend on the nature of the conflict. "In addition, Article 27 of the Vienna Convention (a provision reflecting customary law) points out that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

Common Article 1 of the Geneva Conventions states that "the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances," underscoring the legal obligation of the High Contracting Parties in this respect. The States party to the Convention, by making this declaration, sought to emphasize the particular nature of those treaties, which are not simple contracts based on the principle of reciprocity. The universal nature of the Conventions and the intrinsic value of the humanitarian principles enshrined give an erga omnes character to the obligation contained in the words "to respect and ensure respect." Moreover, international humanitarian law, in accordance with the principle of universal jurisdiction, demands that States search for and punish all persons who have committed grave breaches of the law as listed in Article 147. They must either bring those persons to trial before their own courts or extradite them to a State party to the Convention for prosecution.

A major problem facing the Convention is the refusal by some Parties to acknowledge its applicability. The conflict in this regard is not in the legal or humanitarian framework of the Convention, but a political one. The Parties denying its applicability do so on political grounds and not legal ones, thus adopting an illegal position in this regard. Other States also resort to accepting only its de facto applicability and not its de jure applicability. This presents a problem by creating a set of rules parallel to already established and binding legal texts, such as the Geneva Conventions.


Implementation of the Convention

The Fourth Geneva Convention provides several mechanisms for implementation. The primary responsibility of implementation lies with the States Parties and, above all, with those who are directly involved in the armed conflict, particularly an occupation. The primary mechanism for implementation is the integration of the Convention into national legislation, with such tools as laws to prosecute war crimes and serious violations of international law. Another primary mechanism is the role of Protecting Powers and the ICRC, which has been granted the de jure right of undertaking activities on behalf of the civilian population. The Convention also calls for the dissemination of information as a primary method of implementation. Article 90 of Additional Protocol I provides for the creation of an International Fact-Finding Commission and Article 89 calls for, in the case of serious violations of the Conventions or the Protocol, cooperation by the High Contracting Parties with the United Nations.

The Convention, International Law and Occupation

In addition to its general rules and provisions governing the treatment of civilians, the 4th Geneva Convention sets out rules specific to cases of occupation in Articles 47 through 78. These provisions are parallel to those set out in the Hague Regulations of 1907, which continue to be binding and which must be taken into account in conjunction with the above-mentioned provisions. One such Hague regulation, Article 42, defines occupation as follows: "Territory is considered occupied when it is actually placed under the authority of the hostile army. " Under international law, occupation is considered temporary in nature and involves no transfer of sovereignty. The occupation of territory during war does not confer upon the Occupying Power "state authority" over the population of the occupied territory or over the occupied territory itself.

One of the major provisions of the 4th Geneva Convention regarding occupation is Article 49, which prohibits the transfer by the occupying Power of its own nationals into the territory it occupies. This article was drafted specifically to prevent colonialization and annexation and to prevent any changes in the character of these territories, a result that inevitably ensues with such transfers. At the same time, the Convention also specifies the point at which its application ceases. In cases where a territory is occupied, the application of international humanitarian law, in particular the 4th Convention, ceases only with the effective end of occupation or with a comprehensive political settlement of the dispute, in accordance with the rules of general international law.

The 4th Geneva Convention and the Hague Regulations, along with other bodies of international law, combine to establish the basic principles for belligerent occupation. These include the following:
1. The occupant does not acquire any sovereignty over the territory; it merely exercises de facto authority.
2. Occupation is, by definition, a provisional situation. The rights of the occupant over the territory are merely transitory and are governed by an overriding obligation to respect the existing laws and rules of administration.
3. In exercising its powers, the occupant must comply with two basic require ments or parameters: fulfillment of its military needs and respect for the interests of the inhabitants. International rules strike a careful balance between these two requirements.
4. The occupying Power must not exercise its authority in order to further its own interests or meet the needs of its own population. In no case can it exploit the inhabitants, the resources or other assets of the territory under its control for the benefit of its own territory or population.

The customary rules governing the powers and duties of the occupant in relation to the use of land and other natural resources in occupied territories, as well as in the field of economic activities are clear and simple: the occupant must respect private property. This principle is firmly established in both the Hague Regulations and the 4th Geneva Convention. Article 46 (2) of The Hague Regulations states that "privateproperty may not be confiscated. "It can, however, be expropriated in the public interest of the whole of the inhabitants of the occupied territory (Art. 46) and can be seized only for military purposes (Art. 53).

Strict limitations are placed upon the belligerent occupier and its interference in the economic activity of the territory under its control. Exceptions are made only for the following purposes: to meet its own military or security needs; to cover expenses involved in the occupation; and to protect the interests and well-being of the inhabitants. Any interference with public or privately owned property of the occupied population can be taken only for one of these purposes. This principle also establishes the general concept in international law that any alterations to property by the occupier (i) must not have permanent effects and (ii) must not be taken to the detriment of the local population.

Article 49 (6) of the 4th Geneva Convention is intended as a corollary to the requirement of customary law whereby the occupant is not allowed to use the property of the occupied country, or of its inhabitants, to further its own economic or other interests. Article 46 (2) reinforces the prohibition of the use of land for purposes other than military need, as set forth in the Hague Regulations. Similar principles also apply to water, which can constitute either public or private property. Under international law, water is generally considered immovable property and, if State owned, is highly restricted to military use only or for the needs of the occupied population. As such, the occupant is forbidden to use water to promote its own economy or to pump it to its national territory.

International Humanitarian Law:
Some Articles Relevant to Israel's Belligerent Occupation of the Palestinian Territory, including Jerusalem


The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949:

Article 1- Respect for the Convention

"The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances."

Article 2- Application of the Convention

"...The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations ..."

Article 4- Definition of protected persons

"Persons protected by the Convention are those who, at any given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals..."

Article 6- Beginning and End of Application

"The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143..."

Article 7- Special Agreements

"... No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them ..."

Article 8- Non-renunciation of rights

"Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be."

Article 11- Substitutes for Protecting Powers

"The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention ..."

Article 27- Treatment I. General Observations

"Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity..."

Article 29- III. Responsibilities

"The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred."

Article 31- Prohibition of coercion

"No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."

Article 32- Prohibition of corporal punishment, torture, etc.

"The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents."

Article 33- Individual responsibility, collective penalties, pillage, reprisals

"No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.


Article 46- Cancellation of restrictive measures

"In so far as they have not been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities.
Restrictive measures affecting their property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities."


Section III: Occupied Territories

Article 47- Inviolability of Rights

"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."

Article 49- Deportations, transfers, evacuations

"Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive... "
"...The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

Article 52- Protection of workers

"No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power's intervention.
All measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited."

Article 53- Prohibited destruction

"Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations."

Article 64- Penal legislation. I. General observations

"The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention..."

Article 146- Penal Sanctions I. General observations

"The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article..."

Article 147- II. Grave breaches

"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

Article 148- III. Responsibilities of the Contracting Parties

"No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article."


Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I):

Preamble

"... Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict..."

Article 1- General principles and scope of application

"...3. This Protocol, which supplements the Geneva Convention of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations."

Article 3- Beginning and end of application

"...(a) the Conventions and this Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol;
(b) the application of the Conventions and of this Protocol shall cease, in the territory of the Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation..."

Article 4- Legal status of the Parties to the conflict

"The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question."

Article 51- Protection of the civilian population

"... 2. The civilian population as such, as well as individual civilians, shall not be the object of attack..."

"... 6. Attacks against the civilian population or civilians by way of reprisals are prohibited."
Article 52- General protection of civilian objects
"1. Civilian objects shall not be the object of attack or reprisals..."
Article 53- Protection of cultural objects and places of worship

"Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of

(b) to use such objets in support of the military effort;
(c) to make such objects the object of reprisals."

Article 54- Protection of objects indispensable to the survival of the civilian population

"... 2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works..."

Article 80- Measures for execution

"1. The High Contracting Parties and the Parties to the conflict shall without delay take all necessary measures for the execution of their obligations under the Conventions and this Protocol.

2. The High Contracting Parties and the Parties to the conflict shall give orders and instructions to ensure observance of the Conventions and this Protocol, and shall supervise their execution."

Article 85- Repression of breaches of this Protocol

"...3. In addition to the grave breaches defined in Article 11, the following facts shall be regarded as grave breaches of this Protocol, when committed willfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:
(a) making the civilian population or individual civilians the object of attack; ..."
(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii)…"

"...4. In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions or the Protocol:


Article 86- Failure to act

"1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.

2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach."

Article 89- Co-Operation

"In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter."

Article 96- Treaty relations upon entry into force of this Protocol

"...3. The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary..."

The Hague Convention respecting the laws and customs of war on land of 1907:

Article 1

"The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the laws and customs of war on land, annexed to the present Convention."

Article 3

"A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.


Regulations Annexed to the Hague Convention No. IV Respecting the Laws and Customs of War on Land, 1907:

Article 42

"Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised."

Article 43

"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

Article 46

"Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."

Article 47


Article 50

"No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."

Article 55

"The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

Article 56

"The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings."

The 4th Geneva Convention and the Occupied Palestinian Territory, including Jerusalem


Applicability of the Convention

There exists an established international consensus among all the High Contracting Parties, the United Nations and the International Committee of the Red Cross (ICRC) on the applicability of the 4ih Geneva Convention to the Occupied Palestinian Territory, including Jerusalem, as well as to all the other Arab territories occupied by Israel in 1967- This applicability has been reaffirmed in 25 U.N. Security Council resolutions and in a multitude of resolutions of the General Assembly and other bodies of the U.N.

The crux of the 4th Geneva Convention is to protect the civilian population, individually and collectively, who find themselves in the hands of a belligerent State or occupying Power of which they are not nationals "at any given moment and in any manner whatsoever" (Art. 4) and in "all cases of partial or total occupation" {Art. 2). This principle is further reaffirmed in Additional Protocol I, which clearly specifies the scope of the application of both the Convention and the Protocol. Moreover, the status of the Palestinian territory, including Jerusalem, as "occupied" is indisputable, in accordance with the Hague Regulations of 1907, which states in Article 42 that "Territory is considered occupied when it is actually placed under the authority of the hostile army. "

Israel, the occupying Power, has defied the above-mentioned international consensus and has instead illegally claimed that the 4th Geneva Convention is not applicable to the Occupied Palestinian Territory, including Jerusalem. Narrowly citing Article 2, Israel argues that the 4th Geneva Convention is only applicable to the occupation of the territory of one High Contracting Party by another and, as such, claims that the Convention is not applicable because Jordan and Egypt were not sovereigns over the West Bank, including Jerusalem, and Gaza respectively. These claims, however, are not legally valid. The 4th Geneva Convention, as indicated above, is intended to protect the rights of people who find themselves "in the hands of a Party to the conflict or occupying Power of which they are not nationals"'(Art. 4), regardless of the competing claims to sovereignty over the territory. It does not exclusively refer to territory whose "legal sovereign" has been displaced by the occupant and the term "territory" in the Convention is not restricted to territory where the displaced Government has the complete formal title as the "legitimate sovereign." Article 2 does not pose ownership as a stated qualification where reference is made to "territory of a High Contracting Party."

Moreover, the fact that Egypt never claimed sovereignty over the Gaza Strip and that the international community did not recognize Jordanian sovereignty over the West Bank and Jerusalem further disproves this Israeli claim. This position on the part of the international community is based solely on the fact that the sovereignty over those territories belongs to the Palestinian people, the existence and rights of which are well recognized. In fact, the Israeli argument opens the door for the proper legal position that the Geneva Convention is applicable to all the territories allocated to the Arab State in U.N. resolution 181 (II) of 1947 and occupied by Israel. That is - the Convention is applicable not only to those territories occupied by Israel in 1967, but also to the territory lying between the border of the Jewish state, as specified in the resolution, and the Armistice lines of 1949, which was occupied by Israel in the war of 1948. The basic difference is that the international community has not expressed its position with regard to the legal status of those territories occupied in 1948 and has only established and reaffirmed the applicability of the Convention to all the territories occupied by Israel in 1967, including Jerusalem.

Notwithstanding that Israel is not a signatory to it, Additional Protocol I further specifies the scope of application, making it clear that the sphere of application of the Conventions, as well as the Protocols includes "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination..." (Art. 1).

The above-mentioned principles and provisions of relevant international humanitarian law make it clear that Israel's position is both illegal and untenable. The fact that Israel holds the same position with regard to the applicability of the 4th Geneva Convention to the Syrian Golan Heights, a territory belonging to a High Contracting Party, attests to the refutability of its positions.

The Israeli High Court took a somewhat different position, recognizing the territories conquered by Israel in 1967 as "occupied territories." In this respect, the Court recognized the applicability of the Hague Regulations of 1907 as customary international law. However, it largely interpreted the Regulations in a manner that has effectively permitted every action committed by the Israeli military. With regard to the 4th Geneva Convention, the Court refrained from taking a position on the applicability, maintaining instead that the Convention was not justiciable before Israeli municipal courts on the basis that it was not incorporated by the Parliament as domestic law. Overall, the dominant tendency of the Court has been the non-application of international law and it has often engaged in some forms of legal formalism that ultimately diminish the bearing of international law on the actions of the occupying forces.

Settlement Policy

There is a clear international consensus on the illegality of the Israeli settlements in the Occupied Palestinian Territory, including Jerusalem, and the rest of the occupied Arab territories (the U.S. position was diluted, at a later stage, to one considering settlements as an "obstacle to peace" and as "detrimental to the peace process").

Article 49 of the 4th Geneva Convention is very specific in its reference to settlers or civilians of the occupying Power and states explicitly that "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. "This article prohibits settlements in broad and unequivocal terms without regard to the purported purposes of the settlements and was created specifically to prevent the colonization that inevitably ensues with such population transfers. The ICRC Commentary on the 4th Geneva Convention reaffirms that "Article 49 (6) is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons, or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race."

In an attempt to justify the building of settlements, Israel has for many years alleged that settlements were a security measure that served Israel's military needs. While this argument proved false, it seemed to be put forward in order to reduce international pressure and to evade application of the Hague Convention. It was only later that the Israeli Government began to put forward its political position based on an expansionist ideology, most notably the concept of the "land of Israel" or "Greater Israel." This clearly confirmed the colonialist nature of the settlement drive and the Israeli aim of annexing the land. The entire scope of the Israeli positions on settlements, from the past to the present, has been vehemently rejected by the international community.


Implementation of the Convention

Despite its clear legal obligations, Israel, a High Contracting Party to the 4th Geneva Convention, has defied its obligations under the Convention. In spite of the existence of an international consensus, Israel has refused to implement the Convention and has systematically and intentionally committed grave breaches, breaches and serious violations of its provisions. Israel signed the Geneva Conventions in 1950 and deposited its letter of ratification on 6 July 1951, without the expression of any reservations. As such, Israel is under legal obligation to comply fully with the Conventions and to implement their provisions when called for, as in the case of its belligerent occupation of the Palestinian Territory, including Jerusalem and the rest of the Arab territories occupied in 1967. Furthermore, the universality and humanitarian nature of the 4th Geneva Convention makes it binding on the international community in the same manner in which The Hague Regulations are binding.

Article 1 common to the four Conventions states that "the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." As such, no Contracting Party can offer any valid pretext, legal or otherwise, for not respecting the Convention in its entirety. The clause "in all circumstances" means that the Convention does not depend on the character of the conflict and that security imperatives cannot be used to justify any approach to humanitarian treaties based on specific situations. International humanitarian law does not provide for any unilateral interpretations, modifications or derogation by any one Contracting Party on the application and adherence to the Conventions based on any military, security or national pretexts. This is because all instruments of international humanitarian law already give due consideration to military imperatives by reconciling military necessity with the demands of humanity and incorporating such imperatives into the law. In fact, the 4th Geneva Convention specifically contains a number of concessions to State security and to requirements of national interest.

Moreover, most provisions of international humanitarian law must be implemented, regardless of whether or not national legislation has been adopted to this effect. Further, it is of no relevance whether a State has a monist or a dualist approach to the incorporation of international law into domestic law. A position dependent upon such considerations contradicts Article 18 of the Vienna Convention on the Law of Treaties of 1969 which states that: "a state is obliged to refrain from acts which would defeat the object and purposes of a treaty when it has undertaken an act expressing its consent thereto." The Treaty, which is substantially a codification of customary international law, also provides that a State "may not invoke the provisions of its internal law as justification for its failure to perform a treaty" (Art. 27).

In order to minimize international pressure, Israel has claimed that it applies the "humanitarian" provisions of the Convention. However, there is no distinction in the Geneva Conventions between "humanitarian" and "non-humanitarian" provisions. The Geneva Conventions as a whole form a body of international humanitarian law and, as such, this Israeli position has no validity. This argument is further undermined by the fact that Israel has never indicated which "humanitarian" provisions these might be.

Cessation of Application and Duration of Occupation

Applicable articles of the Geneva Conventions continue to apply to the Palestinian Territory, including Jerusalem, until the effective end of the occupation. In this respect, Article 6 of the 4th Geneva Convention, which specifies the point at which its application ceases, states that: "In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: I to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143..."

The ICRC confirms that: "In cases where a territory is occupied, the application of international humanitarian law, in particular the 4th Convention, ceases only with the effective end of occupation or with a comprehensive political settlement of the dispute, in accordance with the rules of general international law. " Until this occurs, no derogation is possible from the rights guaranteed by the 4th Convention. This was affirmed in Article 7, which states that: "no special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them." As such, Israel's claim that application ceases one year after the general close of military operations is also not valid. Israel remains an occupying Power within the Palestinian Territory and is thus bound by the provisions of the Convention.

Any claims by the occupying Power with respect to "increased" or "broader" authority in the case of prolonged occupations are also invalid. This argument has been rejected by both the international community and international legal experts and contradicts international law, under which occupation is considered temporary in nature and involves no transfer of sovereignty. The occupation of territory during war does not confer upon the occupying Power "state authority" over the population of the occupied territory or over the occupied territory itself. The rights of the occupant over the territory are merely transitory and are governed by an overriding obligation to respect the existing laws and rules of administration.


Obligations of the High Contracting Parties to Ensure Respect

The Geneva Conventions, in common Article 1, establish a legal obligation by both the High Contracting Parties individually and collectively, not only to respect and implement the Conventions, but also to ensure their respect. As noted above, common Article 1 to the four Geneva Conventions states that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." It was added at Geneva in 1949 as a provision specifically to enhance enforcement of the Convention. Common Article 1 has been supplemented by Article 89 of Additional Protocol I, which states that "In situations of serious violations of the Convention or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter."

The obligation by the High Contracting Parties to ensure respect of the 4th Geneva Convention is further affirmed in Article 148 which states that: "No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article"'and in Article 146, which states that: "The High Contracting Parties undertake to enact any legislation necessary to provide penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article... "

The Israeli argument that Article 1 refers to the requirement of States to ensure respect by its own population and is not an inter-state obligation of States with respect to other States, is invalid and undermines one of the basic tenets of the Geneva Conventions, which is the collective responsibility to defend the rights of civilians. According to the Israeli interpretation, Article 1 limits the obligation specifically to the domestic aspect of the Convention. On the contrary, Article 1 calls for ensuring respect "in all circumstances. " Furthermore, the collective responsibility contained in Article 1 is supplemented and reaffirmed by Article 89, which provides for international action to enforce the Convention.

As such, there is clear individual and collective responsibility of the High Contracting Parties to ensure respect of the Convention in the Occupied Palestinian Territory, including Jerusalem. Unfortunately, and in spite of the long duration and the persistence of violations by the occupying Power of the Convention, the Parties have not taken measures to ensure such respect. In some cases, there has even been direct assistance to support illegal settlement activity by private organizations, and even by Israeli organizations of an international character, originating in the territory of some States Party to the Convention. Compliance by those States with their obligations under the Convention thus comes into question.

The obligations of the Contracting Parties to ensure respect by Israel has been emphasized by the Security Council, which, in resolution 681 (1990) of 20 December 1990, called "upon the High Contracting Parties to the Fourth Geneva Convention of 1949 to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof." The Council also requested
"the Secretary-General, in co-operation with the International Committee of the Red Cross, to develop further the idea expressed in his report of convening a meeting of the High Contracting Parties to the Fourth Geneva Convention and to discuss possible measures that might be taken by them under the Convention ..."

This call for a conference was reiterated by the United Nations in four of the resolutions of the 10th Emergency Special Session. Resolution ES-10/3 of 15 July 1997 recommended "that the High Contracting Parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War 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..." This call was repeated in three subsequent resolutions of the 10th ESS, the last of which (resolution ES-10/6) set 15 July 1999 as the date for the conference.

Policies and Practices of Israel, the Occupying Power, in the Occupied Palestinian Territory, including Jerusalem


The following is an outline of the policies and practices of Israel, the occupying Power, in violation of international humanitarian law, followed by the relevant articles of the 4th Geneva Convention, Additional Protocol I and the Hague Convention.

Violence Against and Ill-Treatment of the Civilian Population

Numerous forms of physical violence and ill treatment have been routinely and systematically used against the civilian population. These include summary executions by special undercover units and indiscriminate shootings with live ammunition or rubber-coated bullets by the Israeli army and by armed Jewish settlers, resulting in scores of injuries and death. There have been numerous cases whereby the shootings by soldiers and settlers have resulted in massacres of Palestinian civilians, such as the massacre at Al-Haram Al-Sharif on 8 October 1990 and the massacre of 29 Palestinians in Al-Ibrahimi Mosque in Hebron on 25 February 1994 by a settler.

Another extreme form of Israeli violence against die civilian population is the use of torture in prisons for both repressive and interrogative purposes. Israel is the only nation in the world that has codified and legalized the use of torture in interrogation.

The violence perpetrated against the Palestinian population also includes random and/or excessive beatings, physical harassment and the use of tear gas in confined places. Arbitrary arrests, humiliation, delays and even the obstruction and outright denial of access to medical treatment have been daily occurrences at checkpoints.

4th Geneva Convention: Articles 1, 16, 20, 27, 31, 32, 147 Additional Protocol I: Articles 51, 52, 85 Hague Convention: Article 46

Collective Punishment

Forms of collective punishment against all or parts of the population have included, inter alia, the imposition of curfews and sieges on entire villages or urban centers, often for prolonged periods of time, raids, home demolitions, blanket closures of schools and universities, and the destruction of property, including agricultural and private land, and the uprooting of trees and crops.

Another form of collective punishment is the severe restriction on the freedom of movement of persons and goods within the Occupied Palestinian Territory, between the West Bank and Gaza and between the occupied territory and the outside world. Generally, all Palestinians are required to carry Israeli-issued identity cards and to obtain permits to enter Jerusalem and to travel abroad. For the past several years, East Jerusalem has been placed off limits to Palestinians in the West Bank and Gaza, despite the city's economic, social and religious importance to the Palestinian population.

4th Geneva Convention: Articles 1, 33, 52, 53, 147 Additional Protocol I: Articles 51, 52, 53, 54, 81 Hague Convention: Articles 47, 50



Arbitrary Detention

Israel, the occupying Power, allows for the arbitrary detention of any Palestinian civilian for up to 6 months without trial and the detention orders can be extended indefinitely for additional 6-month periods. In practice, however, many have been detained for much longer periods, some up to or over 7 years. There is no minimum age for arrest or detention and thousands of Palestinians, including children, have been illegally detained. More than 600,000 Palestinian civilians have been arrested since the beginning of the occupation in 1967. As of November 1997, there were approximately 3,000 Palestinians being held by Israel in detention and prison facilities. Moreover, the occupying Power has often moved the detainees to detention camps or centers outside of the occupied territory and into Israel itself.

4lh Geneva Convention: Articles 1, 71, 72, 147 Additional Protocol I: Article 85

Deportation of Civilians

Israel, the occupying Power, has pursued a policy of deportation of Palestinian civilians from their homeland. It has attempted to justify these military orders by citing the British Mandatory Defense (Emergency) Regulations of 1945 (These regulations, however, were revoked in May 1948 by the British Government and cannot, in any case, justify deportation). The deportations are usually carried out through extra-judicial administrative orders taken by military commanders and not by any judicial authority and are not pursuant to any legal procedure.

Permanent expulsions totaled over 1,156 in just the first decade of the occupation, later totaling 2,500 persons. Deportees have included professors, students, trade union leaders, journalists and even elected mayors. Typically, the deportees have been expelled over the border to either Jordan or Lebanon, against the will of those countries. In 1992, Israel carried out an unprecedented mass deportation, expelling 418 Palestinian civilians at one time to Southern Lebanon.

4lh Geneva Convention: Articles 1, 49, 147 Additional Protocol I: Article 85

Illegal Acquisition of Land

After the occupation, Israel, the occupying Power, immediately proceeded to take control of as much of the Palestinian land as possible. In the process, Israel applied complex measures for illegal land acquisition, ranging from the control of all state and communal lands, the application of the British Mandatory Defense (Emergency) Regulations of 1945 and of the absentee property procedures, the change of laws related to the expropriation of land, to the direct confiscation of privately owned land. The illegally acquired land could become either "closed areas," "security zones," "green areas," "nature reserves," or could be used for the building of settlements. More than 50% of the land of the Occupied Palestinian Territory, is now under Israeli control and approximately 7% of the Occupied Territory, including more than 1/3 of East Jerusalem, has been used for settlement building.

4th Geneva Convention: Articles 1, 49, 53, 147 Hague Convention: Articles 55, 46,

Exploitation of Natural Resources

The Israeli occupation has involved both the theft and exploitation of the natural resources of the territories, primarily land and water. Israel has taken the entire Palestinian share of the water resources of the Jordan River and has diverted the resources from three major West Bank water aquifers to meet demands in Israel and in the settlements. Of the 600 million cubic meters of water produced annually in the West Bank, Israel draws 490 million cubic meters while the Palestinians receive only 110 million cubic meters. More than 40 deep-bore wells were also drilled in the West Bank for consumption by Israel. Towards the end of the 1970s, the occupying Power transferred responsibility over water resources from the military government to the Israeli national water company (Mekkorot).

The result has been a severe water shortage for the Palestinian population and a decline in agricultural output because Palestinian farmers have been forced to abandon their farmlands in order to find alternative means of livelihood. The dramatic fall in the proportion of the GNP and employment accounted for by agriculture is also a result of the enormous amount of agricultural land lost to the occupation authorities through confiscation.

4th Geneva Convention: Article 1, 53, 147 Additional Protocol I: Article 54, 85 Hague Convention: Article 46, 47, 55


Substitution of the Occupying Power's Laws for those Previously in Force

With the beginning of the occupation, Israel, the occupying Power, established a military government in the Occupied Palestinian Territory to exert absolute control over the Palestinian population. The two area commanders of the West Bank and Gaza have exclusive formal authority over the area. The commander is the legislator, the head of the Executive, and is in charge of appointing all local officials and judges.

The military commanders have introduced over 1,100 military orders in the West Bank and over 835 in the Gaza Strip. These orders have changed, amended or repealed virtually every law in the Palestinian territory. The occupying Power effected structural changes in the court system and established military tribunals which were responsible for dealing with security related matters, the scope of which has gradually broadened. In November 1981, through a military order, a civilian administration was established for the military government. At the same time, Israel, the occupying Power, has created a dual system of law in the Occupied Territory. Israel has extended some of its laws extraterritorially to the Occupied Territory, applying them only to Jewish settlers and it has established local and regional Jewish councils.

4lh Geneva Convention: Article 1, 64 Hague Convention: Article 43



Transfer of Israeli Population to the Occupied Territories

With the onset of the occupation, Israel, the occupying Power, began to transfer parts of its own population to the Occupied Palestinian Territory, including Jerusalem. These Israelis were settled on illegally acquired Palestinian land in what came to be known as Israeli settlements. Such population transfers are explicitly forbidden under the 4th Geneva Convention specifically to prevent colonization and annexation.

In the initial stage of this process, Israel claimed that the settlements were being built for "security" reasons. At a later stage, however, more ideological reasons were given to justify this illegal expansionist policy. To date, Israel has transferred more than 350,000 settlers into the Occupied Palestinian Territory, including an estimated 180,000 who live in nine settlements in the illegally expanded boundaries of East Jerusalem. The Israeli Government provides considerable financial incentives and other forms of assistance to the settlers to encourage them to move to the Occupied Territory. Most of the settlers are armed and, as evidenced by the many incidents of violence perpetrated by them, have been a real and serious threat to the safety of Palestinian civilians.

The transfer of population, coupled with the illegal acquisition of land, the abuse of natural resources and the establishment of a dual system of law, has created a clear situation of colonization in the Occupied Palestinian Territory.

4th Geneva Convention: Article 1, 49, 147 Additional Protocol I: Article 85 Hague Convention: Article 46, 55


Destruction of the Economic Structure

Israel, the occupying Power, has undertaken a variety of broad measures, effectively causing the destruction of the Palestinian economy. These measures include: strict financial regulations on all activities related to industry; closure or takeover of banks; imposition of taxes, levies & fines (in many cases tax assessments run higher than the annual revenues of a business); withdrawal of operating licenses and closure of farms and businesses; destruction of crops, industrial equipment and other property; stringent measures against agriculture and fishing, including the bulldozing of farmland, the uprooting of trees, and bans on fishing off the Gaza coast; restrictions on the movement of labor; tight controls on export and trade of Palestinian goods; regular and systematic closures of the Occupied Territory to both Israel and the outside world.

The West Bank and Gaza have been transformed into "captive markets" for Israel, whereby Israeli products enter unencumbered by tariffs and customs and free from local or international competition. Local businesses are compelled to buy everything from Israel. The occupation also transformed Palestinian civilians into a pool of cheap labor for Israel and within a few years, a large segment of the Palestinian population became dependent on Israel for employment, mainly in menial labor and construction.

At the same time, the occupying Power, while placing heavy taxes upon the population, did not improve or maintain the infrastructure of the territories in return. The infrastructure was left to deteriorate and minimal municipal, social and health services were provided.

4th Geneva Convention: Article 1, 27, 33, 46, 47, 52, 64 Additional Protocol I: Article 51, 53, 54, 85 Hague Convention: Article 46, 55


Destruction of the Social Structure

The occupation thoroughly destroyed much of the Palestinian social structure and stifled any potential social development. In addition to the direct physical and psychological trauma inflicted on a large segment of the population, other harsh measures were also imposed. Communication with the outside world was severely restricted and the health situation deteriorated as a result of the constraints placed on the medical and public health sectors. The education system was brought under enormous pressure, including the closure of schools and universities for prolonged periods. The return of Palestinian displaced persons (those who fled during the 1967 war) has also been prevented by the occupying Power, as have most cases of family reunification.

All forms of civil liberties were forbidden and violations were severely punished under the occupation. Freedom of expression and assembly were banned and all media and press censored. Forms of political expression, such as the printing of any document containing any political substance, were forbidden.

4lh Geneva Convention: Article 1, 27, 33, 47, 64 Additional Protocol I: Article 51, 53, 54, 85, Hague Convention: Article 46, 56



Additional Illegal Measures in Jerusalem

Immediately following its occupation of the city, Israel, the occupying Power, took numerous measures to consolidate its control over East Jerusalem and judaize it. The Israeli Government expanded the municipal borders of Jerusalem and extended its laws, jurisdiction and administration to East Jerusalem. On 30 July 1980, the Israeli Knesset adopted a law illegally annexing the city. Palestinian Jerusalemites were thus placed in a precarious legal situation, whereby tiiey were issued different Israeli identity cards from other Palestinians in the West Bank and Gaza. Although they did not become citizens, they became subject to Israeli law.

Israel, the occupying Power, has taken various measures to force Palestinians to leave Jerusalem, including land confiscation, restrictions on building, and the refusal to grant family reunification. Most notable in the past several years has been Israel's campaign of evicting Palestinian Jerusalemites from the city. The policy, described as "quiet deportation," involves, inter alia, the widespread confiscation of Palestinian identity cards and has escalated to the point that it is contributing to an additional change in the city's demographic composition. Since 1967, more than 5,000 Palestinians have been stripped of their Jerusalem residency and forced to leave their homes. Of these, approximately 1,400 have been revoked since 1995, with over 788 in 1998 alone.

Gradually, through the imposition of a permanent closure and numerous restrictions on entry, Jerusalem has become almost impossible to reach by the rest of the Palestinian population. The city has become off-limits in the last several years, a situation, which has created enormous social, economic, health and educational problems for the entire Palestinian population.

Given Jerusalem's religious status, the closures have affected the freedom of religion of the civilian population as well. The closure of Jerusalem has prevented Christian and Muslim residents of the West Bank and Gaza from praying at their respective holy places, even during major holidays. Jerusalem's holy places, moreover, have been constant targets by Israelis for desecration, destruction and transformation. The foundations of many Islamic holy sites have been threatened by Israeli archaeological excavations and the Temple Mount has been the site of numerous violent incidents that resulted in the loss of lives of many Muslim worshippers. The Al-Aqsa Mosque itself has been a target of attacks, such as the 21 August 1969 arson attack that caused extensive damage and destruction. In Al-Khalil, part of Al-Ibrahimi Mosque was transformed into an area for Jewish prayer and Palestinian worshippers have been restricted from praying at the site.

4th Geneva Convention: Articles 1, 27, 33, 49, 53, 64, 147 Additional Protocol I: Article 53, 54, 83, 85 Hague Convention: Articles 43, 46, 47, 55, 56



The above-mentioned systematic and institutionalized Israeli policies and practices have been continuously carried out by the occupying Power against the Palestinian civilian population in the Occupied Palestinian Territory, including Jerusalem, since 1967. The priorities given by Israel, the occupying Power, to those policies and practices and the efforts it took to carry them out have varied according to the different situations on the ground as well as to the overall political environment. For instance, illegal acquisition of land and or the transfer of Israeli population have not taken place with the same intensity throughout the whole period of the occupation.

Violence against civilians, collective punishments and deportation of civilians, while always common, dramatically intensified during the 7-year period of the Intifada, which started in December 1987. This intensification of highly repressive measures, labeled Israel's "Iron Fist Policy," was aimed at crushing the uprising as quickly as possible and breaking the will of the people. The figures for this period include the following: over 1,100 Palestinians were killed by Israeli security forces, of which approximately 276 were children under the age of seventeen; over 80,000 Palestinians were seriously injured in die first two years alone; 23,000-29,000 children were seriously injured; 10,000 children under die age of 18 were imprisoned for prolonged periods of time; over 18,000 administrative detention orders were issued against Palestinian civilians; more than 75,000 civilians were detained; over 14,000 were placed under administrative detention (at one point, there were approximately 13,000 Palestinians held in custody at one time); more than 2000 homes were demolished.

With the conclusion of the Israeli-Palestinian peace agreements, and the partial redeployment of Israeli forces from some areas of the Occupied Territory, some of the above-mentioned direct repressive measures have been reduced, possibly due to the decrease in contact and friction between parts of the civilian population and the occupying army. However, Israel's policies and measures related to setdement building, destruction of the economic and social structure, and Jerusalem have all increased substantially. The severe restrictions on the movement of persons and goods, often in the form of general closures, has become an issue of increasing concern during the past several years. In addition to violating international law, all of these policies and practices constitute direct violations of the existing Palestinian-Israeli agreements concluded within the Middle East peace process.

Background on the Conference of the High Contracting Parties to the 4th Geneva Convention on Measures to Enforce the Convention in the Occupied Palestinian Territory, including Jerusalem


The decision on 26 February 1997 by Israel, the occupying Power, to build a new settlement at Jabal Abu Ghneim to the south of Occupied East Jerusalem and the failure of the Security Council to exercise its primary responsibility for the maintenance of international peace and security, due to the use of the veto twice by one of its permanent members, led to the convening of the 10th Emergency Special Session (ESS) of the General Assembly.

The 10lh ESS was convened on 24 April 1997 to consider "Illegal Israeli Actions in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory. " The Session was resumed on 15 July 1997, 13 November 1997, 17 March 1998 and 5 February 1999.

Because of the ability to reconvene upon request by a majority of states, the 10th ESS presented the Palestinian side with an effective mechanism to follow up the implementation of the provisions of the adopted resolutions. During the first resumption of the 10th ESS, the General Assembly considered the report of the Secretary-General, which highlighted Israel's continued illegal actions in the Occupied Palestinian Territory, including Jerusalem, and its refusal to comply with resolution ES-10/2 (25 April 1997). This was followed by the adoption of resolution ES-10/3 (15 July 1997).

Resolution ES-10/3 presented a second follow up mechanism through a provision recommending the convening of a conference of the High Contracting Parties to the 4th Geneva Convention on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, and to ensure its respect in accordance with common article 1. Following the adoption of this recommendation, the Secretary-General of the U.N. invited the Swiss Government, in its capacity as depositary of the Geneva Conventions, to forward the necessary information that would enable him to present to the General Assembly, within three months, the report also called for by resolution ES-10/3.

Through its embassies, the Swiss Government addressed a diplomatic note to all the High Contracting Parties to the 4th Geneva Convention stating that "it is the responsibility of the States Parties to the 4th Convention, once they have noted the recommendation addressed to them, to determine the action they plan to take pursuant to the resolution." The Swiss Government also requested their "observations as to how they consider following up on operative paragraph 10 of the resolution ES-10/3, especially with respect to the holding of a conference as recommended and regarding the results which could be considered. "

The Secretary-General of the U.N. presented his report on 14 October 1997 and an addendum to the report was issued on 10 November 1997. The report contained the responses received by the Swiss Government to the above-mentioned note. By the date of issuance of the report and its addendum, 72 individual responses had been received, of which an overwhelming majority was in support of convening the conference. In addition to the individual responses, collective responses were received from the Coordinating Bureau of the Non-Aligned Movement (NAM), the League of Arab States and the European Union (EU). The EU Member States, who responded collectively as well as individually, advocated careful preparation of the conference. Australia, Israel and the United States were against the recommendation.

The 10th ESS of the General Assembly resumed again in November of 1997 to consider the report of the Secretary-General and the session adopted resolution ES-10/4 on 13 November 1997, which reiterated "its recommendation that the High Contracting Parties to the Geneva Convention 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. " It also contained a recommendation "to the Government of Switzerland, in its capacity as the depositary of the Fourth Geneva Convention, to undertake the necessary steps, including the convening of a meeting of experts in order to follow up on the above-mentioned recommendation, as soon as possible with a target date not later than the end of February 1998. " The inclusion of a paragraph in the resolution regarding the meeting of experts was added as a compromise with the EU to satisfy their call for careful preparation prior to the conference in exchange for reiteration of the recommendation for the conference.

The Swiss Government, in its capacity as depositary, once again was called upon to undertake the necessary preparations to follow up on the implementation of the recommendation for the convening of the conference, including the convening of an expert meeting of the High Contracting Parties. As a result, they undertook another round of consultations regarding the format, content, place, participation, outcome and procedures of the meeting of experts.

The Swiss Government concluded that consultations showed no consensus among the High Contracting Parties to the 4th Geneva Convention regarding the appropriateness of convening such an international conference and that some concerns were expressed by several High Contracting Parties, particularly the wish to improve the situation on the ground and the preoccupation not to jeopardize the peace process. The Swiss Government proposed hosting a closed meeting (which could be repeated if necessary) of representatives of Israel and the Palestine Liberation Organization (PLO) with the participation of Switzerland, in its capacity as depositary, and the presence of the International Committee of the Red Cross (ICRC).

The Swiss proposal was seen as a departure from the agreed compromise, as contained in resolution ES-10/4, which was adopted by the overwhelming majority of Member States. Furthermore, the Swiss' careful approach advocating a consensus among the High Contracting Parties in order to convene the conference or the meeting of experts was neither shared by the majority of states nor was it seen as a condition for the convening of the conference or the meeting of experts.

With the expiration of the target date set out in resolution ES-10/4, the resumption of the 10th ESS was inevitable. The Session was resumed on 17 March 1998 for the purpose of reiterating the recommendations for the convening of both the conference and the meeting of experts, and to extend the deadline for the latter. As noted in resolution ES-10/5 (17 March 1998), the deadline for convening the expert meeting was extended until the end of April 1998.

Following the adoption of ES-10/5, the Swiss Government, on 13 April 1998, presented a new proposal described as "a package of two elements." The first element consisted of an expert meeting of four, structured according to a 2+2 formula, which would include "experts from the PLO, experts from Israel, with the ICRC and Switzerland.''This meeting would focus on a discussion of concrete issues and violations. It would also entail a Swiss announcement of their intention to convene a meeting of all the High Contracting Parties with the objective of discussing mechanisms and measures to apply the 4th Geneva Convention in general and more particularly, but not exclusively, to the occupied territories.

The expert meeting of four between the Palestinian and Israeli experts, with the presence of the ICRC and the chairmanship of Switzerland (2+2 formula), took place in Geneva at Villa Sarasin between 9 and 11 June 1998. The meeting, however, did not result in any improvement on the ground, as Israel continued with its illegal actions in Occupied East Jerusalem and throughout the rest of the Occupied Palestinian Territory.

As planned, the meeting of experts took place from 27 to 29 October 1998. Experts from 117 States participated, as well as the ICRC and U.N. agencies. The final report of that expert meeting, "which reflected the views of the chairman only", was distributed along with a diplomatic note around mid-December by the Swiss Government through its embassies. The final report, as indicated by the note, comprised an introduction and a summary. The summary presented a list of general problems, identified violations of the Fourth Convention, including those related to armed conflict in general and in occupied territories, and the principal measures proposed by the participants to overcome such problems and to prevent future violations.

It was also indicated that "Having [Swiss] proceeded to an evaluation of the exchange of views and the discussions of the recent Expert Meeting, and of the in camera meetings with representatives of Israel and the Palestinian Liberation Organization, the Swiss authorities plan to carry out new consultations with all States Parties, the International Committee of the Red Cross and with other organizations particularly concerned. The consultations will examine the results of the Expert meeting, and consider the advisability and modalities of possible subsequent actions, bearing in mind the message conveyed to the States Parties by the emergency special session of the UN General Assembly."

With the Conference of the High Contracting Parties yet to be convened, the 10th ESS was again resumed on 5 February 1999 and resolution ES-10/6 was adopted on 9 February 1999. Exhaustive rounds of negotiations were held with the EU Troika, with the main contentious issue being the date for the convening of the Conference. The compromise date was 15 July 1999, giving the EU the time it needed for preparations and giving the Palestinian and Arab side a specific date for the convening of the conference. Resolution ES-10/6 also requested the Secretary General to make the necessary facilities available to enable the High Contracting Parties to convene the conference. The decision to set a specific date for the conference was seen as an important development in the process of convening the conference.

On 9 March 1999, however, the Swiss Government embarked on yet another process of consultations seeking "clarifications with regard to the modalities of a conference as recommended by Resolution ES-10/6. "In a note addressed to all High Contracting Parties, the Swiss posed 5 questions on issues related to the decision to convene the conference, position of the parties principally concerned, rules of procedure, the outcome of the conference, and costs. The Swiss set 10 April 1998 as the deadline for the submission of responses.

On 1 and 6 of April 1999, the Arab Group and the Coordinating Bureau of NAM consecutively, presented letters containing their collective response to the Permanent Observer of Switzerland to the U.N. in New York. The responses noted that questions related to the principle of convening the conference had become moot in light of the consistent and repeated support of the overwhelming majority of Member States. They also proposed ideas and suggestions on modalities and rules of procedure for the conference. The responses attached importance to the positions of the parties concerned and advocated broad participation, but without allowing any party to have a veto on the convening of the conference. Regarding the outcome of the conference, the responses suggested that it could take the form of a resolution or a declaration with the support of a very broad majority, with the objective of enabling the High Contracting Parties to carry out their responsibilities to ensure respect of the Convention in the Occupied Palestinian Territory, including Jerusalem.

On 7 May 1999, the Swiss informed the Palestinian side that a broad majority of the High Contracting Parties had responded positively to the convening of the conference and that only 2 states had opposed the convening of the conference. In this regard, the U.S. further informed the Swiss that, if convened, they would not participate in the conference. The Swiss had also decided to move the consultations and discussions on the issue to Geneva.

The Swiss further informed the Palestinian side that the Swiss Government had decided to establish a Group of 26 States to consult and advise regarding the convening of the conference. Palestine and Israel were to be informed of the decisions and discussion outcomes, but were not to be a part of the group, consisting of: The Five Permanent Members of the Security Council; European Troika (Germany, Finland and Austria); another three European States: Norway, Poland and Hungary; Arab League: Tunisia, Egypt and Morocco; Non-Aligned Movement: South Africa, Colombia and Bangladesh; Latin America: Venezuela; Asia: Sri Lanka, Pakistan, India and Japan; OIC: Qatar; Africa: Ghana; Canada and Australia.

On 14 and 15 June 1999, 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 was held in Cairo, Egypt. The Meeting was organized under the auspices of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP) for the purpose of considering important issues with regard to the upcoming Conference of the High Contracting Parties to the Fourth Geneva Convention. More than 100 States participated in the Meeting, in addition to a number of governmental, intergovernmental and other international organizations, including the ICRC and the UNHCHR, as well as several experts in international law and human rights issues. The Meeting adopted a "Final Document" and generally represented an important contribution to the effort to convene the 15 July Conference.

On 23 June 1999, the Swiss Government, in its capacity as the depositary, addressed a note to all the High Contracting Parties to the 4th Geneva Convention informing them of the results of the written consultations and the discussions of the Group of 26 in Geneva. The note indicated that a large majority of the High Contracting Parties support the convening of the conference on the agreed date of 15 July 1999 and that unanimity was not a condition for the conference to take place. However, the note also indicated that the informal consultations revealed that a number of High Contracting Parties believed that the conference should be postponed due to the new political circumstances (i.e., the result of the Israeli elections). Furthermore, the Swiss note stressed that questions related to modalities and outcome of the conference were still open and required further consultations and that the Swiss Government would resume consultations in Geneva in early July.

In that same note, the Swiss Government also informed the High Contracting Parties of the availability of the necessary facilities for the convening of the conference on 15 July 1999 at the United Nations Office at Geneva. Two important annexes were also attached to the note. The first annex contained practical information regarding the conference. The second annex was a registration form for the conference, to be returned to the Swiss Government, which would be undertaking the ad hoc service for the conference.

The Movement of Non-Aligned Countries (NAM) clearly reaffirmed its insistence on convening the Conference on its recommended date, proposed draft Rules of Procedure and called upon States to begin the registration process. Consultations among the political groups continued, including in New York, with the aim of reaching an agreement on the outcome of the conference. Two weeks prior to the conference, it appeared that a broadly attended and successful conference would take place, as recommended, on 15 July 1999.



Detailed information on the background of the 15 July conference can be obtained through the website of the Permanent Observer Mission of Palestine to the U.N. at: www.Palestine-UN.org.



References


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