La question de l’observation de la quatrième conférence de Genève de 1949 dans le TPO – CEDIPP – Etude de DDP Français
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THE QUESTION OF THE OBSERVANCE
OF THE FOURTH GENEVA CONVENTION OF 1949
IN GAZA AND THE WEST BANK
OCCUPIED BY ISRAEL
IN JUNE 1967
Prepared for, and under the guidance of
the Committee on the Exercise of
the Inalienable Rights of the Palestinian People
New York, 1979
Continuing efforts to conclude a Convention concerning civilian populations were interrupted by war in 1939. Agreement was finally reached in Geneva in 1949 on a virtually new Convention designed to regulate the effects of war and its aftermath on civilians in the zones of hostilities. It drew little from the earlier Hague Conventions, evidently because the extent of the impact upon civilians of the new scale of warfare was unprecedented, and innovation was imperative.
Entitled the "Geneva Convention Relative to the Protection of Civilian Persons in Time of War", and widely referred to as the "Fourth Geneva Convention", it sought to prescribe rules to mitigate the hardship and suffering that now could be imposed on civilian populations not only during the hostilities themselves, but also after a cease-fire or truce, when civilians could be subjected to military occupation in the absence of a final political settlement.
The overriding aim of the Convention, which grants the occupying Power the right to take certain measures to protect its security, is to ensure that claims of military exigency do not result in the violation of basic political and human rights of the civilians under military occupation.
Commenting on the motives leading to the adoption of the Convention, a report by a committee of the United Nations observes:
"The Fourth Geneva Convention of 1949 may be considered as the expression of the international community's sense of revulsion at the treatment accorded to Jews who came under the Nazi regime during time of war and occupation and who were subjected to indignities, abuses and deprivations in gross denial of human rights.
"Since the adoption of that Convention the irony of history has made the June 1967 war between Israel and its neighbouring Arab countries, and the aftermath of that war, the first occasion on which the value of the Convention itself and the genuineness of individual nations' adherence to it could be put to the test..."*
* UN Document A/8089, paras 41 and 42.
The Convention has been signed by all States directly involved in the Middle East issue; ratification entered into force on the dates indicated below:
"The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." (Article 1)
"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." (from Article 2)
"Persons protected by the Convention are those who, at a 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." (from Article 4)
"The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2." (from Article 6)
The International Committee of the Red Cross, in its authoritative "Commentary on the Fourth Geneva Convention" states, inter alia, in respect to Articles 1 and 2:
"A clause of this kind appeared, in a slightly different form, in the 1929 Conventions. Its prominent position at the beginning of each of the 1949 Conventions gives it increased importance. By undertaking at the very outset to respect the clauses of the Convention, the Contracting Parties drew attention to the special character of that instrument. It is not an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations vis-a-vis itself and at the same time vis-a-vis the others. The motive of the Convention is such a lofty one, so universally recognized as an imperative call of civilization, that the need is felt for its assertion, as much out of respect for it on the part of the signatory State itself as in the expectation of such respect from an opponent, indeed perhaps even more for the former reason than for the latter."
"In case of war being declared or of armed conflict, the Convention enters into force; the fact that the territory of one or other of the belligerents is later occupied in the course of hostilities does not in any way affect this; the inhabitants of the occupied territory simply become protected persons as they fall into the hands of the Occupying Power."1
Israel has taken the position that the Fourth Geneva Convention is not applicable to the Israeli occupation of the West Bank and Gaza, showing particular concern regarding a clause in Article 49 which prohibits the occupying Power from measures to transfer parts of its own civilian population into the territory it occupies. The essence of Israel's arguments appears in the following extracts from statements of Israeli representatives in the United Nations as well as in other fora. The Israeli representative to the United Nations declared in the General Assembly on 26 October 1977:
"Since Jordan never was a legitimate sovereign in Judea and Samaria, the provisions of the Fourth Geneva Convention—including those of its article 49, which were intended to protect the rights of 'the legitimate sovereign'—do not apply in respect of Jordan. Therefore, Israel is not affected by these provisions, and need not consider itself restricted by them. In other words, Israel cannot be considered an 'occupying Power', within the meaning of the Convention in any part of the former Palestine Mandate, including Judea and Samaria...
"[Quoting Prof. Stephen Schwebel]: 'As a general principle of international law... it is both vital and correct to say that there shall be no weight to conquest, that the acquisition of territory by war is inadmissible. But... the distinctions between aggressive conquest and defensive conquest, between taking of territory legally held and illegally held, become no less vital and correct than the central principle itself.'
"The facts of the June 1967 'Six-Day War' demonstrate that Israel reacted defensively against the threat and use of force against her by her Arab neighbours... The conclusion to which these facts lead is that the Israeli conquest of Arab and Arab-held territory was defensive rather than aggressive conquest.
"The facts of the 1948 hostilities between the Arab invaders of Palestine and the nascent State of Israel further demonstrate that Egypt's seizure of the Gaza strip, and Jordan's seizure and subsequent annexation of the West Bank and the old city of Jerusalem, were unlawful... It follows that the Egyptian occupation of Gaza, and the Jordanian annexation of the West Bank and Jerusalem, could not vest in Egypt and Jordan lawful, indefinite control, whether as occupying Power or sovereign: ex injuria jus non oritur.
The legal arguments for the Israeli position, which is based on the contention that there was no 'legitimate sovereign' in the West Bank and Gaza in 1967, were summarized by an authority on international law*:
"In my opinion, Israel cannot be regarded as an 'occupying power' in Judea and Samaria, nor can those areas be viewed as occupied territory held by the State of Israel, not only as regards article 49, but in all matters relating to the Fourth Geneva Convention in general and even in all applications of international law of belligerent occupation in the broader sense.
"The terms 'occupying power' and 'occupied territory' are technical terms with a very well-defined meaning in international law.
"They refer to a situation in which, as the result of hostilities between two states, one of them seizes control of the territory which is under the sovereignty of the other. Such areas thus become occupied territories, and the state which controls them assumes the status of an occupying power together with all the rights and obligations which flow from this status.
"However, actual sovereignty over such areas is not transferred by one state to another as the result of the change of physical control over them. The legitimate sovereign, as is the legal and technical term on this matter: that is, the state whose forces have been driven out of the occupied territory, retains its sovereignty over this territory even after its physical removal from it and the annexation of such territory by the occupant is absolutely prohibited.
"The purpose of these rules of international law of belligerent occupation is to protect the rights of the sovereign from the occupant. Article 49 must also be understood as one of the rules intended to achieve this goal.
"And yet, in all matters relating to Judea and Samaria, and the same argument applies also to the Gaza Strip, the circumstances envisioned by the Fourth Geneva Red Cross Convention do not exist because the situation here is not one in which a legitimate sovereign and an occupying power are confronting one another.
"... the Kingdom of Jordan never acquired the status of a legitimate sovereign over Judea and Samaria. On the interpretation most favorable to the Kingdom of Jordan, her rights over Judea and Samaria could thus not exceed those of a belligerent occupant. That is its conclusion which is of decisive legal significance as regards to the nature and scope of the present rights of Israel over these territories.
"It will be clear already that the traditional rules of international law governing belligerent occupation are based on a two-fold assumption, namely that it was the legitimate sovereign which was ousted from the territory under occupation, and that the ousting side qualifies as a belligerent occupant with respect to that territory.
"This assumption of the concurrent existence in respect of the same territory of both the ousted legitimate sovereign and the belligerent occupant lies at the root of all those rules of international law which, while recognizing and sanctioning the occupant's right to administer the occupied territory, aim at the same time to safeguard the rights of the ousted sovereign.
"It would seem to follow that in a case like the present one where the ousted state never was the legitimate sovereign, those rules of belligerent occupation directed to safeguarding that sovereign's rights simply cannot find application.
"[Quoting Professor Schwebel]
"Since, in the present view, no state can make a legal claim to Judea and Samaria that is equal to that of Israel, this relative superiority of Israel may be sufficient under international law to make Israel's possession of those territories virtually indistinguishable from an absolute title to be valid erga omnes. The fact that Israel has so far refrained from making full exercise of these rights beyond the municipal limits of Jerusalem is perhaps best explained by the Israeli Government's reluctance to close certain political options in any future negotiations.
"It is against the background of these legal considerations as distinct from the political considerations underlying the resolutions of various international bodies that the questions surrounding the juridical status of Judea and Samaria have to be viewed.
"I would, therefore, conclude by saying that Israel cannot be considered as an occupying power within the meaning given to this term in international law in any part of the former Palestine mandate, including Judea and Samaria.
"Also, as a result, Israel's right to Judea, Samaria, and the Gaza Strip are not subject to the limitations imposed by international law on a belligerent occupant."3
* Professor Yehuda Blum of the Hebrew University, Jerusalem; currently Permanent Representative of Israel to the United Nations.
These Israeli contentions were questioned by another authority on international law*, who stressed that the goal of the Convention was not to respond to claims of sovereignty, but to prevent the violation of basic human rights:
"The international humanitarian law of armed conflict for the protection of war victims, which includes the customary law on the subject as well as conventional or treaty law, is human rights law in the most fundamental sense. It provides a basic or minimum standard of human rights protections for individuals which are to be applied in the situation of war or international armed conflict, including belligerent occupation. The governments which have created this law have acted on the assumption that even urgent military necessity cannot be allowed to deprive human beings of certain elementary protections. The overriding purpose of the Geneva Conventions of 1949, as reflected in the negotiating history, was to avoid a repetition of the atrocities and massive deprivations of human rights which were inflicted upon civilian populations during the Second World War by the Nazis in Europe and Russia and by the Japanese militarists in Asia.
"In a number of the post-World War II war crimes trials conducted by the Western Allies, Nazi defendants employed elaborate arguments, including questioning the title to 'occupied territory', to avoid the application of the then effective customary and conventional international humanitarian law as criteria for judging the criminality or innocence of their conduct. Although these arguments were rejected by the war crimes tribunals, the four Geneva Conventions of 1949 were written in careful language so as to avoid the possibility of raising these defenses again. The common article 2 of all four Conventions provides that the Conventions, 'Shall apply to all cases of declared war or of any other armed conflict which may arise... even if the state of war is not recognized...
"The same article also provides that the Convention shall also apply to 'all' situations 'of partial or total occupation of the territory of a high contracting party...
"The Conventions are thereby applied to the facts of international conflict, and the lack of a declaration of war is irrelevant. The Conventions also provide no basis for a 'just war' theory which would deprive an alleged aggressor of the benefits of the law while saving those benefits for an alleged defender. In the same way, the negotiating history makes it clear, since the application of the Conventions is mandatory, that questions as to de jure titles to territory are not involved and that the Convention must be applied in occupied territory whatever the claims concerning the de jure status of that territory.
"Since the requirement of Dr. Blum's presupposition is alleged to be unfulfilled, the conclusion is then reached that the Government of Israel is not required to apply the international humanitarian law for the benefit of the inhabitants of occupied territory.
"... it assumes without supporting evidence that the word 'territory' in article 2 of the Civilians Convention must be narrowly construed as only including territory over which the displaced government had de jure title or complete formal sovereignty.
"Even if the claim that Jordan annexed the West Bank unlawfully should be accepted for purposes of legal argument, this does not mean that this territory is not 'the territory of a high contracting party' within the meaning of article 2. It is well established that the word 'territory' includes, in addition to de jure title, a mere de facto title to the territory. Otherwise, civilians in disputed territory would be denied the protection of law on the basis of a trivial, and indeed, a nonexistent technicality.
"... the idea that in order to apply the law of belligerent occupation it is necessary for the belligerent to recognize the displaced government's title to the territory finds no support in either the text of the Convention or its negotiating history. In addition, it is contrary to the well-established customary law based upon state practice...
"... the legal obstacle of the discredited 'just war' concept which Dr. Blum relies upon must be raised. Dr. Blum and the Government of Israel claim the right to unilaterally categorize the opponent's title to land as being the result of aggression with the effect that civilians do not receive the protection of the international humanitarian law.
If the humanitarian law were to be changed so that its application was made contingent upon recognition by the belligerent occupant of the justness of the war aims of its opponent, it is perfectly clear that the humanitarian law would be rarely, if ever, applied. [Another] legal block to the acceptance of Dr. Blum's thesis is that it frustrates the entire humanitarian purpose of the Civilians Convention. Dr. Blum interprets the Convention as a treaty which is designed to protect governmental rights and particularly the right to dispute the de jure title to territory. In contrast, the governments represented at the Geneva Diplomatic Conference of 1949, including the Government of Israel, stated in the preamble to the Civilians Convention that they met 'for the purpose of establishing a Convention for the Protection of Civilian Persons in Time of War'. To attempt to avoid humanitarian protections for civilians by alleging the existence of non-specified governmental rights is to turn the entire Convention upside down. Since the Convention was written by governments, it is clear that the governmental rights which Dr. Blum alleges to exist would have been specified in the Convention if the governments at Geneva had accepted their legal validity." 4
* Professor W. Thomas Mallison of George Washington University.
The Israeli Supreme Court has ruled that the Fourth Geneva Contention is not applicable by Israeli courts because it is "contractual" international law which would require specific Israeli legislation before :he courts take cognizance of it. In contrast the Hague Convention of 1907, ruled the Court, is declaratory of customary international law, and therefore can be applied by domestic courts without specific legislation. These rulings were given by the Supreme Court, sitting as a High Court of Justice, on 13 March 1979 in the Beth El/Bekaoth cases concerning Israeli settlements in the occupied territories. Excerpts follow:
"[Referring to the Hague Convention of 1907 and the Geneva Convention of 1949]... No one disputes that the petitioners are such protected persons, according to the meaning of this term in international law.
"But the first question to which we must address our attention is whether the petitioners, as protected persons, have standing by themselves, to claim their rights, under these conventions,—and whether this can be done in the 'municipal' (internal) court of the occupying state—or whether, it is only the states themselves as parties to the convention which have the standing necessary to claim the rights of the protected persons—and this, of course, only on the international level. Of course, the reply to this question depends on the answer to another question: whether those provisions of the international conventions which are to be enforced, have become part of the 'municipal' (internal) law of the state whose court is asked to adjudge the problem, or whether, perhaps, the provision is simply in the nature of an agreement between states, which has not been absorbed into the internal, municipal law. In the first instance, we speak of 'customary' international law, recognized by the municipal courts, to the degree that the provision is not in contradiction with municipal law, itself, while in the second instance, we speak of 'contractual' international law, binding, as we have said, only on states, and between them and between themselves.
"It has to be concluded on the basis of the aforegoing material that we must deal with the claims of the petitioners to the degree that they are based on the provisions of the Hague Convention, which is considered customary international law, and that there is no basis in this court to relate to claims based on Article 49 of the Geneva Convention. Thus, the discussion is narrowed down to the question of whether the respondents violated international law when they seized the lands of the petitioners and prevented them from using them. Complaints against the establishment of Jewish settlements on their lands are not based, in terms of international law on the Hague Convention, but rather on the Geneva Convention, Article 49, which states:
In a more recent case, concerning the Elon Moreh settlement, the Israeli Supreme Court held to the same position in respect to the Fourth Geneva Convention although, in his separate judgement, one judge (Justice Vitkon) commented: "... It is a mistake to think... that the Geneva Convention does not apply to Judea and Samaria. It applies, even though, as has been stated above, it is not justiciable in this court." 6
On the question of the lack of domestic legislation providing a justification for failure to fulfill international obligations, it is relevant to recall the decision on this point in the Alabama Claims Arbitration, between Great Britain and the United States. The arbitral tribunal dealt summarily in the following words with the British plea that it lacked municipal law to fulfil its neutrality obligations:
"And whereas the Government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which is possessed..."7
The legal considerations that hold that the Convention is applicable to the territories in question receive support from several quarters. Especially significant is the position of the International Committee of the Red Cross (ICRC) which has been given a special status in the Convention by Articles 30 and 143. This impartial body is usually extremely reticent in comment, normally dealing in confidence with the authorities concerned. The ICRC has been deeply involved since 1967 in the occupied territories, rendering valuable humanitarian services under the terms of the Convention. In 1972, the ICRC offered to substitute as the "Protecting Power", as provided for in Article 11 of the Convention.
The ICRC has faced directly the question of the Convention's applicability and from time to time has commented on the issue. For instance, in its 1968 report, the ICRC stated:
"Application of the IVth Convention.—In spite of ICRC efforts, the Israeli Government stated that it wished to leave the question of the application of the IVth Convention in Israeli-occupied territory 'open for moment', preferring to act on a pragmatic basis and to grant delegates practical facilities.
"The Geneva Conventions being treaties concluded by States, responsibility for their strict implementation lies with the signatory governments... " 8
In 1973, the ICRC report commented:
"Despite further ICRC approaches, the Israeli authorities maintained their stand that the question of the applicability of the Fourth Geneva Convention of 1949 in occupied territories should be left open, allowing the ICRC to exercise its activities on an empirical basis.
"In [some] cases, however, owing to Israel's stand, the ICRC failed to obtain satisfaction. The ICRC can only deplore a situation which deprives the victims of full protection and of their rights under the Fourth Convention." 9
In 1975, the ICRC declared:
"Applicability of the Fourth Convention: the ICRC is of the opinion that it is applicable in toto in the three occupied territories and cannot accept that a duly ratified international treaty may be suspended at the wish of one of the parties." 10
The 1976 report of the ICRC comments:
"In 1976 the Israeli government maintained its attitude of non-recognition of the applicability of the Fourth 1949 Geneva Convention in the occupied territories. The ICRC, in contrast, has consistently stated its opinion that all conditions existed for the applicability of that Convention." 11
Another authoritative and objective body, the International Commission of Jurists (ICJ), has the following comments on Israel's arguments:
"The first argument rests upon a highly restrictive reading of the wording and negotiating history of the IVth Geneva Convention. Article 2, para. 2, does not state that the Convention shall apply only to the sovereign territory of a High Contracting Party, and Jordan and Egypt were in de facto occupation and control of the West Bank and Gaza Strip at the time of the Israeli occupation. Moreover, much of the Convention, including article 49, is declaratory of pre-existing international law and such provisions in the Convention should be recognized as being of universal applicability and binding in all circumstances upon High Contracting Parties...
"The 'ousted sovereign' argument ignores the fact that the Geneva Conventions were drawn up for humanitarian reasons for the protection of individual victims of war, rather than to protect the interests of states...
"The often repeated argument that the situation in the Middle East cannot be measured by accepted standards, being clothed instead with the lawyers' panacea of sui generis, is a dangerous one. Acceptance of it would nullify the whole concept of the laws of war. No war or military occupation is precisely like another. Legal rules are established in advance to be of general application.
The United Nations also views the Convention as applicable to the Israeli-occupied territories. In particular, the Commission on Human Rights and the General Assembly have repeatedly and consistently reiterated this view virtually since the Israeli occupation began, and have shown growing concern as the occupation has continued.
For example, in its most recent resolution in December 1978, the General Assembly:
"Bearing in mind the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August, 1949,
"Noting that Israel and those Arab States whose territories have been occupied by Israel since June 1967 are parties to that Convention,
"Taking into account that States parties to that Convention undertake, in accordance with article 1 thereof, not only to respect but also to ensure respect for the Convention in all circumstances,
"1. Reaffirms that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to all the Arab territories occupied by Israel since 1967, including Jerusalem:
"2. Strongly deplores the failure of Israel to acknowledge the applicability of that Convention to the territories it has occupied since 1967;
"3. Calls again upon Israel to acknowledge and to comply with the provisions of that Convention in all the Arab territories it has occupied since 1967, including Jerusalem;
"4. Urges once more all States parties to that Convention to exert all efforts in order to ensure respect for and compliance with the provisions thereof in all the Arab territories occupied by Israel since 1967, including Jerusalem."
The Security Council also has taken a position. On 11 November 1976, it authorized a consensus statement by the Council President on the situation in the territories occupied by Israel, expressing:
"(1) … its grave anxiety and concern over the present serious situation in the occupied Arab territories as a result of continued Israeli occupation;
"(2) Reaffirmation of its call upon the Government of Israel to ensure the safety, welfare and security of the inhabitants of the territories and to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities;
"(3) Its reaffirmation that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War is applicable to the Arab territories occupied by Israel since 1967. Therefore, the occupying Power is called upon once again to comply strictly with the provisions of that Convention and to refrain from any measure that violates them. In this regard, the measures taken by Israel in the occupied Arab territories that alter their demographic composition or geographical nature and particularly the establishment of settlements are accordingly strongly deplored. Such measures which have no legal validity and cannot prejudice the outcome of the search for the establishment of peace constitute an obstacle to peace..."
Taken together, the international legal considerations quoted, and the positions of the UN and other authoritative bodies cited, leave no doubt that the Fourth Geneva Convention is applicable to the Israeli-occupied territories of the West Bank and Gaza.
The Question of the observance of the Convention by Israel
While maintaining, international legal opinion to the contrary notwithstanding, its insistence that the Convention is not legally relevant to the West Bank and Gaza, Israel has simultaneously taken the position that in practice it implements the Convention's provisions. 13
To examine the question of the observance in practice of the Convention, this study does not undertake any new investigation, but relies on those already carried out by several impartial bodies, official and non-official. These sources are:
(a) Reports of the UN Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories. The Special Committee, comprised of three members (at present Senegal, Sri Lanka and Yugoslavia), was established by the General Assembly on 19 December 1968. Its mandate is to:
"...investigate... whether there have been contraventions of the Geneva Convention of 1949, and if it finds that there have been instances of contravention and violation of these rules of international law... to express its opinion as to the means and measures by which the international community can instil in all nations a scrupulous respect for, and extract from them adherence to, these rules of humanitarian conduct even under the brutalizing influence of armed conflict."
Israel does not recognize this body and denies it access to the occupied territories. The Special Committee on Israeli Practices, (or "Special Committee" as it is referred to in this study) has issued annual reports based on testimony of witnesses, official Israeli statements and reports in the Israeli press.
(b) Annual reports of the International Committee of the Red Cross (ICRC);
(c) Reports by Amnesty International;
(d) A report by the Swiss League for Human Rights, which sent an observation mission to the occupied territories in mid-1977; 14
(e) A report by the (US) National Lawyers Guild, which sent a delegation to the Middle East in early 1977. 15
III. ALLEGATIONS OF ANNEXATIONIST POLICIES BY ISRAEL: LAND EXPROPRIATIONS AND ISRAELI SETTLEMENTS IN THE OCCUPIED TERRITORIES
"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 (para. 6) reads:
"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."
While taking the position that it applies the Convention, despite rejecting any legal obligation, Israel has implemented a policy of establishing military and civilian settlements in the occupied territories, claiming a right to do so on the ground that these territories are part of the "Eretz Israel" of biblical times. This has involved the transfer of Israelis to the occupied territories and the displacement of Palestinians from their own land, which has been subject to expropriations. These Israeli policies have led to charges of Israeli intent of annexing the occupied territories.
The UN on several occasions has denounced these policies of Israel. For instance, by an overwhelming of 131 in favour, 1 (Israel) against and 8 abstentions, the General Assembly on 28 October 1977 passed a resolution in which the Assembly:
"Expressing grave anxiety and concern over the present serious situation in the occupied Arab territories as a result of the continued Israeli occupation and the measures and actions taken by the Government of Israel, as the occupying Power, and designed to change the legal status, geographical nature and demographic composition of those territories.
"Considering that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to all the Arab territories occupied since 5 June 1967;
"1. Determines that all such measures and actions taken by Israel in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction of efforts aimed at achieving a just and lasting peace in the Middle East;
"2. Strongly deplores the persistence of Israel in carrying out such measures, in particular the establishment of settlements in the occupied Arab territories;
"3. Culls upon Israel to comply strictly with its international obligations in accordance with the principles of international law and the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949;
"4. Calls once more upon the Government of Israel, as the occupying Power, to desist forthwith from taking any action which would result in changing the legal status, geographical nature or demographic composition of the Arab territories occupied since 1967, including Jerusalem;
"5. Urges all States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War to ensure respect for and compliance with its provisions in all the Arab territories occupied by Israel since 1967, including Jerusalem."
On 22 March 1979, the Security Council adopted a resolution in which the Council:
"Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem;
"1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
"2. Strongly deplores the failure of Israel to abide by Security Council resolutions...
"3. Culls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own population into the occupied Arab territories;
By this resolution, the Council appointed a Commission consisting of Bolivia, Portugal and Zambia to investigate and report upon the situation in the occupied territories. The Commission's report listed the following conclusions:
"Recent information on the settlements
"According to figures obtained, there are altogether in the occupied territories 133 settlements, including 17 in and around Jerusalem, 62 in the West Bank, 29 in the Golan Heights and 25 in the Gaza strip and the Sinai:
"The population of those settlements varies in number, probably depending on the policy purposes predetermined for each settlement. In the area of Jerusalem and the West Bank where the establishment of settlements has been the most intensive, the number of settlers has reached approximately 90,000. while in the Sinai their number would be under 5,000.
"The land seized by the Israeli authorities as a whole, either specifically for the establishment of those settlements or for other stated reasons, covers 27 per cent of the occupied West Bank and the quasi totality of the Golan Heights.
"On the basis of the information received, the Commission is convinced that a number of settlements were established on privately-owned land and not only on public land.
"Many of those settlements are of a military nature, either officially placed under the control of the Israeli army or tie facto with a settler population of military age. Moreover, those settlers are said to have at their disposal military weapons in the midst of an unarmed Arab population.
"According to several witnesses, the location of the settlements is determined in accordance with agricultural designs, and also with what Israel considers to be 'security' purposes. This may explain for instance the existence of three successive belts of settlements reported to have been established between Jerusalem and the Jordan River and which would be aimed at 'compartmenting' the local population.
"Supported by the strong influence of various private groupings, the settlement policy is an official government programme which is implemented by a number of organizations and committees representing both the Government and the private sector inside and outside Israel.
"In addition to private contributions coming mostly from outside Israel, the financing of the settlement policy is essentially a governmental matter. In that connexion, the Commission was told that the Israeli Government has set aside the equivalent of $US 200 million for expanding and establishing settlements during the fiscal year 1979/ 80.
"The Commission found evidence that the Israeli Government is engaged in a wilful, systematic and large-scale process of establishing settlements in the occupied territories for which it should bear full responsibility.
"Consequences of the settlement policy on the local population
"The Commission is of the view that a correlation exists between the establishment of Israeli settlements and the displacement of the Arab population. Thus it was reported that since 1967, when that policy started, the Arab population has been reduced by 32 per cent in Jerusalem and the West Bank...
"The Commission is convinced that in the implementation of its policy of settlements, Israel has resorted to methods—often coercive and sometimes more subtle—which included the control of water resources, the seizure of private properties, the destruction of houses and the banishment of persons, and has shown disregard for basic human rights, including in particular the right of the refugees to return to their homeland.
"For the Arab inhabitants still living in those territories, particularly in Jerusalem and the West Bank, they are subjected to continuous pressure to emigrate in order to make room for new settlers who, by contrast, are encouraged to come to the area...
"The settlement policy has brought drastic and adverse changes to the economic and social pattern of the daily life of the remaining Arab population. As a mere example of that evolution, the Commission was informed that a number of Arab landowners were now compelled to earn their living and that of their family by working on their own land as the hired employees of the Israeli settlers.
"The Commission considers that the pattern of that settlement policy, as a consequence, is causing profound and irreversible changes of a geographical and demographic nature in those territories, including Jerusalem.
"The Commission has no doubt that those changes are of such a profound nature that they constitute a violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the relevant decisions adopted by the United Nations in the matter..." 16
In his comments on the Security Council's consideration of the report, Israel's representative reiterated Israel's claims to annex the occupied territories:
"The Jewish people and the State of Israel have the right in principle, as well as in law and in terms of national security, to a permanent presence in Judaea, Samaria and the Gaza District.
"The inseparable bond between the Jewish people and its homeland, Eretz Yisrael—the Land of Israel—is an integral part of world history, inextricably entwined in the texture of world culture. No amount of distortion and fabrication at the United Nations can undo so central a fact of the political, spiritual, cultural and religious history of the world. This profound historical and spiritual tie between the Jewish people and the Land of Israel has found expression in 3,000 years of uninterrupted Jewish presence in the land.
"...Israel has better title than any other country in all of the former mandated territory of Palestine west of the River Jordan.
"Everything I have said applies with special force to Jerusalem, the eternal capital of Israel and of the Jewish people.
"Let me, as the representative of Israel, therefore state here again that Jerusalem, one, undivided and indivisible, shall remain forever the capital of Israel and of the Jewish people."
Israeli intent to continue its policy of establishing settlements in the West Bank are reflected in a "Master Plan for the Development of Settlement in Judaea and Samaria, 1979-1983", prepared by the World Zionist Organization. The first principle of this plan states: "Settlement throughout the entire land of Israel is for security and by right". The plan envisages the settlement of 27,000 families by both establishing new settlements and "thickening of the existing settlements" on the West Bank. 17
Reports of the Special Committee on Israeli Practices also have documented a series of Israeli statements stretching back several years. Excerpts from these reports illustrate policies the trend of which suggests intent of eventual annexation:
The 1971 report of the Special Committee observed:
"The evidence presented to the Special Committee during its investigation in 1971 has confirmed its impression that policies and practices violating the human rights of the population of the occupied territories, which it discovered in 1970, have continued and have become even more manifest. This applies especially to the policies of settlement and of annexation of certain territories at present under the Israeli occupation: examples of the policy of settlement are the Golan Heights and certain parts of the West Bank, while Eastern Jerusalem provides a clear instance of the policy of annexation. The very fact of the existence of such policies, openly admitted and proclaimed by members of the Government of Israel and by Israeli leaders, is, in the Special Committee's opinion, a grave violation of the human rights of the population of the occupied territories.
"The following facts tend to support the conclusion that it is the Government of Israel's policy to annex and settle the occupied territories:
(a) The existence, in the Government of Israel, of a 'Ministerial Committee for Settlement of the Territories';
(b) Express pronouncements to this effect by Israeli Ministers and leaders:
(g) The mass expulsion and continued deportation of individuals from the occupied territories;
(h) The continued transfer of the population of the occupied territories to other areas within the occupied territories.
"At the heart of the Middle East problem is the 'Homeland doctrine' enunciated by the Government of Israel and supported by the Opposition. According to this doctrine even the United Nations resolution on the partition of Palestine and the creation of the State of Israel did not restore to the Jewish people what they were convinced was their territory. The State of Israel as created by the United Nations has expanded territorially from time to time; according to the Government of Israel, this expansion has been justified by considerations of security. The Special Committee finds it difficult to reconcile this claim with pronouncements by Israeli leaders, proclaiming a faith and belief in what are asserted to be the ancient boundaries of the Land of Israel. Against such a strongly held belief international law or even the norms of international conduct can prove of no avail. In any event the Special Committee is unable to accept any argument whereby considerations of security may be invoked to depopulate occupied territories, to deprive hundreds of thousands of persons of their ancestral home, and somehow sought to be justified on the ground that there exist 14 Arab States that are in their opinion required to receive them.
"In light of the declared policy of the Government of Israel as expressed categorically by Israeli leaders, the Special Committee has no doubt that the policy of annexation and settlement is dictated by considerations alien to those of national security. No such considerations, however, would in any event offer the least justification for measures that are contrary to the provisions of the Fourth Geneva Convention." 18
(a) By the Prime Minister (Mrs. Meir):
"These outposts and settlements are seeds which will develop in the future, growing in population and becoming more firmly rooted. This settlement activity has deepened our roots in the land and strengthened the foundations of the State [and] preparations and plans are under way for the continuation of this important activity, whether rural or urban settlement..." (Jerusalem Post, 26 July 1973)
(b) By the Defense Minister (Gen. Dayan):
"... (Israel should stay forever in the West Bank] because this is Judea and Samaria, this is our homeland. We could as well have stayed in America and Russia had we not wanted to come here." (Jerusalem Post, 15 May 1973)
[The report stated:]
"The evidence before the Special Committee clearly establishes the fact that the Government of Israel is continuing with its policy of the unilateral annexation of the occupied part of Jerusalem and the enlargement of the municipal boundaries of the city by the incorporation of considerable areas of land forming part of the occupied West Bank.
"... The official pronouncements of members of the Government of Israel and the measures that have been taken in the occupied territories are primarily inspired by the basic Zionist ideology that the whole area rightfully belongs to Jews in the biblical meaning of the land of Israel... This doctrine, which is the basis of the policy of the Government of Israel in the occupied territories, cannot for a moment be entertained, much less accepted by the organization to which the State of Israel owes its very creation.
Similar evidence and conclusion appear in the Special Committee's report for the following years; excerpts from the most recent, in 1978, follow:
"The Government of Israel continues to implement a policy of settlement and annexation of the occupied territories. Recent unequivocal statements by the Prime Minister and other members of the Government of Israel prove that such a policy exists and that its application is being accelerated...
"... The Special Committee has noted in past reports that the Government of Israel bases its policy of annexation and settlement on the so-called 'homeland' doctrine, that is, that the territories occupied in June 1967 form part of the Jewish homeland. The Special Committee considers that, regardless of the political aspects of the Middle East situation, the Government of Israel, by following such a policy, is denying the Palestinian people their fundamental right to self-determination... Rather than safeguard the rights of the people under their military occupation, the Government of Israel claims that its settlements in these territories are established as of right... In the circumstances, the Special Committee cannot but conclude that the Government of Israel consciously follows a policy which is in violation of the Fourth Geneva Convention, in particular, article 47 which prohibits annexation of territories under military occupation by the occupying Power and article 49 which prohibits the transfer of citizens of the occupying Power into the occupied territories." 20
The International Commission of Jurists expresses similar views:
"In so far as there existed any doubt about it in the period preceding World War II, the Charter of the United Nations in 1945 unambiguously rejected the 'right to conquest'. It was on the basis of this purported right that colonial powers throughout history invaded other territories and settled part of their own population in them. With the right to conquest the right to create settlements has also disappeared, and what is left is the bare right of temporary military occupation where necessary in lawful self-defence. This does not include a right to establish settlements of a civilian nature or settlements of a permanent character. There is, therefore, no valid basis in international law on which the Israeli government can maintain or continue its policy of settlement in any of the occupied territories.
"This same conception underlies the IVth Geneva Convention the applicability of which must be accepted in spite of the ingenious Israeli arguments to the contrary. In particular, article 49 of this Convention, which embodies a legal principle with independent force, is pertinent in the present situation." 21
The National Lawyers Guild report also concludes that the Israeli policy on settlements violates Article 49 (6) of the Convention. 22
Land Expropriations by Israel
The establishment of Israeli settlements has led directly to expropriations of the property of Palestinians to provide land for the settlements. For instance, one of the reports of the Special Committee on Israeli Practices notes:
"Evidence of the policy of the Government of Israel of expropriating land in the occupied territories.
"The Special Committee is of the opinion that any transactions for the acquisition of land between the State of Israel and Israeli nationals on the one hand, and the inhabitants of the occupied territories on the other, have no validity in law and cannot be recognized as legal changes in ownership. Even the payment of compensation does not render such transactions valid or confer legal title. The Special Committee's reason for expressing this opinion is that the inhabitants of the occupied territories, in the absence of the protection and guidance of the regime under which they lived before the occupation, are not acting as free agents. The disposal of the property of individuals in any State is liable to control and regulation by the State in accordance with State policy. This indispensable factor for the conferment of legality on private land transactions does not exist in the occupied territories. It is incumbent on the United Nations to state unequivocally that these transactions are not recognizable. They would create a formidable obstacle to the restoration of the status quo ante the hostilities of June 1967. If it is the intention and desire of the United Nations that the territories under occupation by the State of Israel as a result of the hostilities of June 1967 should be vacated and should not be subject to acquisition by Israel, the United Nations cannot permit conditions to be created which would leave in the heart of these territories, after the cessation of the military occupation, large areas and settlements which are claimed to have been acquired by the State of Israel or its nationals." 23
The ICRC also has commented on Israel's policy of expropriations. For instance:
"Expropriations: The ICRC delegation in Israel was asked to deal with several cases of expropriation, by the Israeli authorities, of land belonging to the inhabitants of occupied territory... in November, it delivered orally a note on this subject at the Ministry of Foreign Affairs; the ICRC delegation was informed that the Ministry did not wish to pursue this matter any further." 24
"In its concern regarding the principle and the human implications of expropriation, the ICRC repeatedly drew the attention of Israel civil and military authorities to the effect of expropriating land under cultivation or fixed property and establishing Israel settlements in the occupied territories.
"As the Government of Israel declared that it did not want to enter into any discussion in the matter, the ICRC delegates were compelled to submit human problems to the authorities as and when they arose." 25
While holding that the Fourth Geneva Convention has no validity in Israeli courts, the Israeli Supreme Court has ruled that the expropriation of land for the establishment of settlements in the occupied territories is legal if justified on grounds of military or security needs. In the Beth El/Bekaoth case judgement (referred to earlier) the Court ruled in favour of the Israeli Government stating, inter alia, the following:
"... the petitioners [argue] that in fact there is no military or security need to seize their lands, to seal them off and to put them at the disposal of the Israeli settlement authorities in order to establish civilian settlements on them. The claim of the respondents that this is required for urgent military needs is in the opinion of the petitioners nothing but a subterfuge disguising other motives...
"But the main point is that in terms of pure security considerations, there is no reason to doubt that the presence of settlements, even 'civilian' ones, composed of citizens of the occupying power, in the occupied territory, is a significant contribution to the security of that territory, and that such presence makes it easier for the army to fulfil its task...
"[Referring to the prohibitions in the Fourth Hague Convention of 1907 against the seizure of enemy property and the confiscation of private property]
"The respondents' reply is that the petitioners' property has not been confiscated, but that the use of the lands was seized in exchange for offered rental payment. According to them, this seizure is a requisition and is legal under Article 52 of the Hague Convention...
"... there is a clear distinction between confiscation (which is really expropriation without payment, for an illegal purpose) and requisition, which is the case of immoveables, deprives the owners only of the use of their property, in exchange for consideration, but does not deprive them of their ownership. According to the pleading of the State Attorney, the action of the military government should be so viewed, and if this is so, 1 am satisfied that this action cannot be considered as contravening Articles 23 (g) and 46 of the Hague Convention. On the contrary, Article 52 of the same Convention expressly permits the occupying power to demand from the population articles (and services) for the army's needs...
"In light of the fact that the seized lands are located in areas which are considered sensitive from a security point of view, as explained above, it appears, that also, in this sense, the action of the respondents is justified.
"... the limits within which this court will intervene in the military considerations of the military government are very narrow, and... the judge, as an individual, will certainly refrain from imposing his own views on security and political matters in place of the military considerations of those responsible for the defense of the State and the maintenance of public order in the occupied territories.
"[The counsel for the petitioners had raised a specific question:]
"How is it possible to establish a permanent settlement on land which has been seized only for temporary use? This is a serious question. But I accept [the] answer that the civilian settlement will be able to exist only as long as the IDF holds the area on the basis of the seizure order. This possession may be wound up some day, as a result of international negotiations which may end with a new agreement that will receive the force of international law and this is what will determine the fate of this settlement and that of the other settlements in the occupied territories.
"[Another Judge of the Supreme Court commented on this point:]
"I was troubled by the question as whether the name 'permanent settlement' revealed a plan to permanently deprive the owners of their land. However, I have reached the conclusion that the description 'permanent' must be considered relatively. We are not talking about travellers who are stopping over to spend the night, or of guests coming to spend several weeks or months, but about people who will see this place as their home. However, it should be recalled that the state of emergency in which the State finds itself has existed for thirty years and more. The prospect for comprehensive peace with all our neighbors is still seen, to this very day, as an aspiration linked to the unknown future. A peace agreement with our neighbors will require, in any case, when the day does come, the elaboration of suitable security arrangements. Considerations within the peacemaking framework may be different than those dictated by present-day reality. It is therefore, clear, that the stipulations of the agreement will decide, in the final analysis, the fate of this or that settlement.
In a more recent case, concerning the Elon Moreh settlement, the Court ruled against the Government and ordered dismantling of the settlement because it had been established not on the basis of military or security needs, but as a result of political considerations:
"The impression is created that the settling of the site was organized like a military operation, taking advantage of the element of surprise and in order to ward off the 'danger' of this court's intervention in the wake of landowners' applications even before work in the field could begin.
"[The argument of security needs] would in itself not have led to the taking of the decision on the establishment of the Elon Moreh settlement, had there not been another reason, which was the driving force for the taking of said decision in the Ministerial Defense Committee and in the Cabinet plenum—namely, the powerful desire of the members of Gush Emunim to settle in the heart of Eretz-Israel, as close as possible to the town of Nablus. With respect to the discussions in the Ministerial committee and in the Cabinet, we were not able to follow them by perusing the minutes of those discussions. But even without this we have enough indications from the evidence before us that both the Ministerial committee and the Cabinet majority were decisively influenced by reasons lying in a Zionist world-view of the settlement of the whole land of Israel...
"... first came the wish of the members of the 'Elon Moreh' nucleus to settle as close as possible to the town of Nablus, and only afterwards, and as a result of the pressure they brought to bear, did the approval of the political level come, and finally also the approval of the military level. The political consideration was, therefore, the dominant factor in the Ministerial Defense Committee's decision to establish the settlement at that site, though I assume that the committee as well as the Cabinet majority were convinced that its establishment also fulfills military needs...
"... the decision to establish a permanent settlement intended from the outset to remain in its place forever—even beyond the duration of military government which was established in Judea and Samaria— encounters a legal obstacle which is insurmountable, because the military government cannot create in its area facts for its military needs which are designed at initio to exist even after the end of the military rule in that area, when the fate of the area after the termination of military rule is still not known. This contains a prima facie contradiction which shows also, according to the evidence before us in this petition, that the decisive consideration which led the political level to decide on the establishment of the settlement under discussion was not the military consideration. In these circumstances the legal form of requisitioning the possession only and not expropriating rights of ownership, cannot change the face of things, namely the taking of possession, which is the main content of property, forever..."
"[Another Judge of the Court also dealt with this last point, referring to:]
"... the question arising from the contradiction between seizing land for military purposes, which is a temporary seizure, and establishing a civilian settlement as a permanent settlement. It is well known that civilian settlement has always constituted an integral part of the Yishuv's general defence deployment... Here a distinction between two things should be drawn: The integration of civilian settlements into regional defence was started many years before Israel achieved statehood, and continued, after statehood was attained, within the state's territory. During those years, the basis was always that the civilian settlements are permanent, and there was no fault in this from a legal point of view either, since the post-statehood settlements were the state's jurisdiction. In the pre-state period as well, the intent was to establish permanent settlements on land owned by the settling bodies. Here we are discussing a temporary seizure, and hence the contradiction between it and the creation of permanent settlements..." 27
IV. ALLEGATIONS OF FORCED TRANSFERS OF PALESTINIANS AND DENIAL OF THEIR RIGHT OF RETURN
"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.
"Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
(Paragraph 6 already has been quoted in the preceding section.)
Excerpts from the ICRC Commentary on this article are:
"The prohibition is absolute and allows of no exceptions, apart from those stipulated in paragraph 2...
"... Evacuation is only permitted... when overriding military considerations make it imperative; if it is not imperative, it ceases to be legitimate.
"... protected persons who have been evacuated are to be brought back to their homes as soon as hostilities in the area have ended..." 28
Israeli policies of transferring large bodies of Palestinians and of deporting individuals, in apparent infringement of this article, have been noted in several reports, as illustrated below.
The Special Committee on Israeli Practices, in various reports, has commented on these policies, including the attitude of the judiciary:
"Such transfers of population have occurred in the case of several villages that were systematically destroyed in 1967: the population of these villages was either expelled or forced to live elsewhere in the occupied territories. The same practice has been followed in occupied Jerusalem...
"... the arbitrary transfer of population was unnecessary, unjustified and in breach of the Fourth Geneva Convention.
"Unlike the policy of annexation, which is openly admitted and declared by members of the Government of Israel and by Israeli leaders, there is no similar admission or declaration of policy in regard to deportation. The oral evidence of witnesses appearing before the Special Committee, together with the established fact that a substantial number of individuals have been deported, clearly demonstrates the existence of a policy of deportation on the part of the Government of Israel...
"On the question of deportation, the Special Committee also notes the decision of the Supreme Court of Israel, sitting as High Court of Justice... The petitioner had been detained for a considerable time under... the Defense (Emergency) Regulations, 1945, which provides that: 'A Military Commander may be order direct that any person shall be detained in such place of detention as may be specified by the Military Commander in the order'. Later the Minister of Defence... issued an order for his deportation [under] Regulation 112 [which] provides that: '(1) the Minister of Defence shall have power to make an order, under his hand, for the deportation of any person from Israel. A person in respect of whom a deportation order has been made shall remain out of Israel so long as the order remains in force'... The Court dismissed the petition, basing itself inter alia on the argument that it is not within the competence of the High Court to consider the argument brought by the petitioner since this is entrusted exclusively to [an] Advisory Committee in virtue of Regulation 112, 'whether this be desirable or not'...
"The evidence that the Special Committee has received reflects a policy on the part of the Government of Israel designed to effect radical changes in the physical character and demographic composition of several areas of the territory under occupation by the progressive and systematic elimination of every vestige of Palestinian presence in these areas. It would have the effect of obliterating Arab culture and the Arab way of life in the area, and, contrary to international law, of transforming it into a Jewish State...
"... such a policy will render more difficult any eventual restoration of the Palestinian people's property and other rights. Besides denying the right of Palestinians who have fled the occupied territories to return to those territories, it also threatens the right of Palestinians who have remained in the occupied territories to continue to live there. In the Special Committee's view the right of the inhabitants of the occupied territories to remain in their homeland is unqualified and inalienable...
"The Special Committee is of the opinion that the practice of deportation of persons from occupied territories, as carried out by Israel, is not only contrary to article 49 of the Fourth Geneva Convention but is also part of a total policy of depriving the people of the occupied territory of their right to remain in their homeland...
The ICRC also has commented:
"The ICRC approached the Israeli authorities several times with a view to stopping expulsions which it regarded as being contrary to Article 49 of the Fourth Convention. In a communication addressed to the Prime Minister of Israel at the end of February, the President of the ICRC expressed the ICRC's concern regarding the dire consequences for the persons stricken by such measures, against which appeal was not possible and which provided for no time-limit. The Prime Minister replied that the expulsion orders had been dictated by security considerations and that they were to be preferred to detention over an indefinite period. As the explanations given failed to allay ICRC apprehension, Mr. Umbricht, a member of the ICRC who went to Israel towards the end of 1971, confirmed that the ICRC wanted the expulsion of Arabs from the occupied territories to cease. The Israeli authorities agreed to consider individual applications from persons who had been driven out and who wanted to return.
"DISTURBANCES AND POPULATION TRANSFERS IN THE GAZA STRIP
"On 21 July, the ICRC delegation in Gaza was informed by refugees that the Israeli army the day before had started to transfer refugee families to El Arish or to unoccupied camps on the West Bank of the Jordan. At the same time, in the Jabalia, Shatti and Rafah camps, work had started on the destruction of some of the shelters and on the laying of new avenues in order to reduce the camp population and facilitate supervision.
"The occupation authorities, whom the ICRC delegates immediately contacted, ascribed the measures adopted to overriding security needs. They explained, however, that arrangements had been made to rehouse and compensate the persons displaced.
"By the end of August, more than 14,700 persons had been affected by those measures. Most refugees were dissatisfied with their new housing and before long returned to Gaza. Relatives or friends provided shelter, usually in the camps. By the end of the year, some 200 families were staying on at El Arish and around fifty on the West Bank.
"The ICRC made various approaches of a general nature to the Israeli authorities. It expressed concern about the forced transfers and urged that rehousing and compensation should be accelerated and intensified.
"The Israeli Government subsequently informed the ICRC that the operations, which had considerably reduced the number of outrages, were to cease for the time being. It assured the ICRC that, should any further transfers be contemplated, new housing would first be provided near the areas to be evacuated, to ensure that the persons displaced would be promptly rehoused.
"UPROOTING OF PEOPLE
"In December, the ICRC delegation intervened on behalf of a Bedouin tribe of about 260 persons whom the Israeli authorities had compelled to leave their lands near the Dead Sea and to settle in the Bethlehem district. As a result of the transfer, those people were deprived of their lands and their livelihood. The place where they found themselves did not belong to them, and their flocks could not graze there." 30
The National Lawyers Guild report also contains information on forced displacements of Palestinians in a section entitled "Involuntary Resettlement of the Gaza Population." 31
"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.
"Pillage is prohibited.
"Reprisals against protected persons and their property are prohibited.
"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."
The ICRC Commentary declares, with reference to Article 33, that the prohibition of collective punishment is directed at "penalties of any kind on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed." 32
The ICRC Commentary also expresses apprehension over the effectiveness of Article 53:
"The occupying forces may... undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand.
"Furthermore, it will be for the occupying Power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying Power to circumvent the prohibition set forth in the Convention." 33
The Convention also limits the type of penalties that can be imposed on persons who commit offences against the occupying Power:
"Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period.
Several reports have concluded that certain Israeli policies and actions including destruction of homes constitute, as apprehended by the ICRC Commentary, collective reprisals in violation of the Convention. Illustrations from the reports of the Special Committee on Israeli Practices follow:
"The evidence received by the Special Committee reveals that collective and area punishment takes the form of destruction of houses, curfews, and mass arrests. A common feature of these forms of collective punishment appears to be the lack of proportion between the act committed and the punishment imposed...
"In addition to this evidence describing incidents of collective punishment, the Special Committee takes note of certain pronouncements of Israeli leaders. These pronouncements show that the collective punishments that have been imposed in the occupied territories are not merely isolated incidents in answer to manifestations of resistance to occupation, but rather part of a deliberate policy adopted by the Government of Israel. These acts of collective punishment in themselves are a violation of article 33 of the Geneva Convention...
"In the cases brought to the Special Committee's attention regarding such incidents as those for example, in Halhul, Beit Sahhaur, and Gaza, there is no evidence to show that any effort was made to establish the responsibility of the victims of collective punishment and that in all cases the punishment imposed, whether it was destruction of homes or a twenty-two hour curfew, or indiscriminate arrest or detention for prolonged periods, was utterly draconian and defied the most elementary principles of humanity. Furthermore, the Special Committee has come to the conclusion that these collective punishments were imposed by way of reprisal, which is in itself contrary to the Fourth Geneva Convention. (Article 33)
"The Committee received evidence concerning destruction of houses that took place in Jerusalem in order to clear certain areas. This was preceded by confiscation or expropriation of the land on which the houses were constructed. The destruction that went on in Jerusalem is now a matter of public record and the evidence brought before the Special Committee confirms the fact that this has taken place, that those responsible for this destruction are the Israeli authorities, and that the victims are the civilian Arab population of Jerusalem.
"The Special Committee recalls the mass destruction of the three villages in the Latrun area—Yalu, Emwas, and Beit Nuba—which were completely razed to the ground and whose inhabitants were dispersed. The Government of Israel is said to have offered alternative accommodation to the inhabitants of these villages in another area, but the Special Committee has not been able to verify these reports. The Special Committee acknowledges that these reports, if correct, show that the Israeli authorities are aware of the problem created by this destruction. It strongly urges that these villages be rebuilt and that the inhabitants be allowed to return to their homes.
"Destruction of property is prohibited by article 53 of the Fourth Geneva Convention. Certain derogation clauses in other articles (inter alia, 5 and 53) make some exceptions to this prohibition. These exceptions are based on considerations of military necessity. The Special Committee is of the opinion that there is no question that with regard to the destruction of these three villages, refuge cannot be taken behind these exceptions.
"The Special Committee considers that in the case of the three villages of Yalu, Beit Nuba and Emwas, Israel had 'unscrupulous recourse' to military necessity in carrying out this wanton destruction.
"... the Government of Israel's declared policy is to destroy the houses of persons suspected of helping members of the resistance. This policy is in violation of articles 33 and 53 of the Fourth Geneva Convention. It also violates the fundamental right of the protected persons to a home. The evidence before the Special Committee shows, moreover, that the destruction of houses takes place arbitrarily and that it has not ceased... The Special Committee notes that many persons whose houses have been demolished have left the occupied territories. The Special Committee is of the view that the policy of demolition of houses in this manner and a demonstrated policy of deportation, as parts of a general policy of annexation and settlement, can have but one result: the elimination of any possibility of the fulfilment of the Palestinian people's right of self-determination within the confines of their own homeland.
"The evidence shows that the practice of imposing harsh curfews continues. In regard to the four weeks' long curfew imposed on the Shati Refugee Camp following the grenade incident in January 1971, the conditions of curfew make it appear to have been more of a form of reprisal than a necessary means of either preventing similar incidences or bringing the offenders to book.
"In regard to allegations of mass arrests, the Special Committee has reached the conclusion that whatever their avowed purpose, the arrests were clearly calculated in part to be a means of destroying the morale of the people of the occupied territories.
"The evidence before the Special Committee indicates further that there has been a marked increase in the adoption of certain measures which are contrary to the provisions of the Fourth Geneva Convention and which are tantamount to harassment of the civilian population. Thus, for example, demolition of houses, which is in violation of articles 33 and 53 of the Fourth Geneva Convention, has, during 1974, assumed alarming proportions...
"The same observation applies to the practice of mass arrests, which is a violation of article 33 of the Fourth Geneva Convention... 35
"... the Special Committee received information which indicates the existence of a policy of reprisal carried out by the adoption of such measures as demolition of houses, expulsion of persons prominent in the community and interference in the commercial life of the civilian population.
"... This has led it to conclude that such a policy, which is contrary to articles 33, 49 and 53 of the Fourth Geneva Convention, does exist." 36
ICRC reports corroborate those of the Special Committee, as indicated below:
"Destruction of buildings.—During the year, the Israeli military forces have on several occasions, by way of reprisals for the activities of resistance fighters, destroyed houses in the occupied territories of Gaza and the west bank of the Jordan.
"The ICRC delegates in Israel repeatedly petitioned the Israeli civilian and military authorities to cease these practices which are contrary to Articles 33 and 53 of the IVth Convention, and to ask for the reconstruction of the damaged houses or for financial compensation to be paid..." 37
"... while deploring all terrorist attacks against civilians, he [head of ICRC delegation in a memo to Ministry of Foreign Affairs] insisted that such attacks in themselves were no justification for resorting to reprisals or any other form of collective penalties, including the destruction of buildings, as expressly prohibited in Article 33 and 53 of the Fourth Convention. In view therefore, he demanded that the destruction of houses should cease." 38
"In view of the continued destruction of houses in the occupied territories, the President of the ICRC made a renewed appeal to the Israeli Prime Minister at the end of April that her Government should abandon a method to counter subversive activities which the ICRC regarded as being contrary to the provisions of Articles 33 and 53 of the Fourth Geneva Convention. In her reply in August, the Prime Minister stated that the Government of Israel could not renounce measures which it deemed essential for the maintenance of security in the occupied territories..." 39
"The situation of the victims whose homes where destroyed by the Israeli army in the occupied territories was often aggravated by the arrest of one or more members of the family concerned, and such cases continued to be a source of concern for the ICRC, which holds that such destructions are contrary to the provisions of Articles 33 and 53 of the Fourth Geneva Convention..." 40
The National Lawyers Guild Report, focussing on the legal viewpoint, also concludes that Israel's policies in the West Bank and Gaza constitute collective punishment in violation of the Convention. 41
"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.
"Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.
"However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war."
"Protected persons shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them.
"No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."
"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 protected persons, but also to any other measures of brutality whether applied by civilian or military agents."
The Special Committee on Israeli Practices has heard evidence and has examined hundreds of witnesses in relation to allegations of torture and ill-treatment. The evidence appears in its reports giving graphic details of the interrogation methods and torture alleged to have been employed by Israeli military and police, and the effects they have had on their victims. The Special Committee, however, citing Israel's refusal to allow it to conduct first-hand investigations, has remained restrained in its comments on allegations of ill-treatment and torture of Palestinians.
In 1970, it stated:
"The Special Committee heard several witnesses who alleged that they had been subjected to cruel and inhuman treatment whilst under detention... The Committee notes also that a number of witnesses, in independent testimony in different countries, have corroborated one another's evidence with regard to methods of ill-treatment practised in certain prisons as distinct from certain other prisons. This is particularly true of Sarafand camp, sections of the Muscovite prison in Jerusalem and the Gaza prison." 42
Israel accused the Special Committee of being deceived by questionable evidence, and produced counter-evidence in 3 of the 195 cases cited in the 1970 report of the Special Committee, whose response, inter alia, was:
"With regard to allegations of ill-treatment while under detention, the Special Committee, despite the compelling nature of the evidence it has received, is still unable to reach a conclusive finding, which would only be possible after a free investigation by the Special Committee carried out inside the occupied territories..." 43
Over the years, however, the Committee appears to have become more convinced, stating in its 1976 report:
"... the indications that cases of torture have occurred and continue to occur are very strong and the international community cannot afford to connive at a continuation of such an abhorrent practice. The sporadic efforts undertaken by the Israeli authorities—far outnumbered by the serious allegations—have been shown to be insufficient; the same may be said of the ICRC's efforts which, the record shows, have not arrested the increase in the frequency of allegations of torture over the nine years since the occupation."
In 1977, the Sunday Times of London carried a major report on torture of Palestinians. The Special Committee invited the reporters to testify, and its 1977 report comments:
"The Special Committee took note of a report appearing in the Sunday Times of London on 19 June 1977, entitled 'Israel tortures Arab prisoners: special investigation by INSIGHT'... On the invitation of the Special Committee the Sunday Times agreed that two of the members of the team who had conducted the inquiry would appear before the Special Committee to establish the authenticity of their report and to furnish the Special Committee with further clarification of the information contained in the article... Mr. Paul Eddy and Mr. Peter Gillman appeared before the Special Committee... [and]... confirmed the contents of the report and described procedures followed by them in securing evidence relevant to their assignment. They stressed their view that, in allegations of torture, absolute proof cannot exist. They expressed the opinion that it was during interrogation that torture is administered; they referred to the 44 cases upon which they had conducted research. According to them, interrogations are handled by the Israeli Security Service and/or the Military Intelligence. They felt that torture followed a certain pattern with differences related to the prison where it took place. A common practice was that of humiliation of the detainee by subjecting him to debasing treatment...
"The Special Committee took note of the article entitled 'Flawed Insight on Torture' by David Krivine, appearing in the Jerusalem Post Magazine on 5 August 1977, which reported as follows:
"The Special Committee, evaluating the over-all position, came to the conclusion that the two journalists had conducted their inquiries over a period of four months with a sense of near clinical detachment. Accordingly, the two journalists had made inquiries from witnesses and discarded evidence which appeared to them unsatisfactory. The work undertaken by the Insight team and the procedure followed by them in securing their information convinces the Special Committee that the Insight report constitutes valid evidence. In all the circumstances, the Special Committee is obliged to go beyond the conclusion it reached in last year's report... and has no option but to state that a strong prima facie case has been established that detainees in occupied territories are subjected to treatment which cannot be described as other than torture.
"The Special Committee finds it intolerable that such liberties are taken with such a fundamental principle of human rights intended to safeguard the physical safety and human dignity of the individual. The Special Committee must, therefore, repeat even more emphatically the observation it made in its last report that the international community can no longer afford to ignore the manifest and serious violations of human rights which detainees are subjected to by the Israeli authorities in the occupied territories." 45
The ICRC, exercising its traditional restraint, has made no public comment on the allegation of torture, but the Special Committee cites evidence produced by the ICRC:
"The Arab Red Cross and Red Crescent Societies presented a publication entitled 'Violations of the Geneva Conventions of 1949' to the twenty-fourth International Conference of the Red Cross held at Istanbul, Turkey, in September 1969. This publication quotes reports of torture made by the International Committee of the Red Cross concerning, in particular, Hebron, Jenin and Tulkarm Prisons. In the report concerning the Hebron Prison, dated 31 October 1968, the delegate of the International Committee of the Red Cross is quoted as stating: 'It came to light during our interviews with the prisoners that the treatment they received during interrogation was brutal.' A number of prisoners who showed scars of brutal treatment were named by the delegates.
"Another report concerning Nablus Prison, dated 26 February 1968, states:
'A number of detainees have undergone torture during interrogation by the military police. According to the evidence, the torture took the following forms:
1. Suspension of the detainee by the hands and the simultaneous traction of his other members for hours at a time until he loses consciousness.
2. Burns with cigarette stubs.
3. Blows by rods on the genitals.
4. Tying up and blindfolding for days (in one case for seven days).
5. Bites by dogs.
6. Electric shocks at the temples, the mouth, the chest and testicles.'
"None of the reports quoted in this publication have been refuted and this, together with the evidence before the Special Committee, lends it to believe that there is, in several prisons, especially in Sarafand Camp, a regular practice of ill-treating inmates. Such ill-treatment is prohibited by the Universal Declaration of Human Rights in Article 5, which states:
An ICRC report in 1970:
"noted that... during the visits, delegates have sometimes met detainees whose bodies showed traces of, according to the prisoners, ill-treatment during interrogations. In keeping with ICRC general practice, each case was brought to the attention of the military authorities so that they could investigate whether detainees' allegations were correct and, if so, punish those guilty, as required by the Geneva Conventions and national legislation." 47
In 1977, the Special Committee noted further information from the ICRC:
"The Special Committee took note of a report in the Sunday Times of London on 18 September 1977 concerning the role of ICRC in inspecting detainees and acting as a safeguard against the physical abuse of detainees. This report, entitled 'What the Red Cross secret reports say', is the most recent of the disclosures provided by the original Insight Inquiry. According to this report, ICRC delegates have filed some 550 reports of their visits to prisoners from the occupied territories. The Insight team states that it obtained 336 of these reports and inspected 80 in addition. The reports states that at least 200 formal complaints of ill-treatment or torture were passed to the Israeli authorities by Red Cross delegates. The report gives details on the content of some of these ICRC reports. This information confirms the conclusions reached by the Special Committee at that time that detainees were indeed being subjected to torture. Furthermore, the Special Committee notes with serious concern the information contained in the same report to the effect that some time in 1969 ICRC agreed to modify their reports on complaints and to substitute these with generalizations. The reason attributed by the Sunday Times report for these modifications was because some of the ICRC reports 'had been leaked at the United Nations'. Secondly, and at the same time, ICRC agreed that before any of its delegates would take up any complaint of torture the person concerned must first be willing to repeat his allegations to Israeli army officers, who could cross-question the person. According to the Sunday Times report, since this agreement between ICRC and the Israeli authorities, complaints of torture dropped to an average of about six a year." 48
Amnesty International also has commented on allegations of torture of Palestinians. After its Secretary-General was permitted to visit several Israeli prisons during February 1969, Amnesty International in 1970 published a report on the "prima facie evidence of the serious maltreatment of Arab prisoners under interrogation in Israel";
"If these allegations are true, then extremely brutal torture is used on a not inconsiderable number of those detained. They would also seem to imply that such ill-treatment is continuing up to the present time.
"The allegations made to Amnesty's representatives during their investigations cannot be brushed aside. The forms of the alleged tortures were clearly described. The prisons, centres of interrogation, the periods within which torture was alleged to have taken place and the descriptions, names—or pseudonyms—of the alleged torturers were also given. The material in Amnesty's possession includes not only the foregoing but also photographs and medical reports relating to complainants now in Jordan. Amnesty has, moreover, received from sources inside Israel and the Occupied Territories as well as from outside the names of men and women still (up to January 1970) in Israeli prisons who are alleged either themselves to have been tortured or to have been witness to the effects of torture on their fellow prisoners.
"... At the present point in time, Amnesty restricts itself of claiming that the serious nature of these allegations warrants immediate inquiry so that their truth can be tested and the practice of torture, if it exists, can be brought immediately to an end." 49
A Member of the Executive Committee of Amnesty International commented:
"We never claimed that the allegations about torture had been proved... but we have in our possessions very extensive material to support the assumption that torture does in fact occur.
"We have rarely—if ever—had such reliable material on which to base the establishment of the fact in relation to torture taking place— or not taking place—in a particular country." 50
The 1978 Amnesty International reported:
"Amnesty International has continued to receive allegations that detainees held in connection with security offences have suffered ill-treatment and torture.
"On 19 June 1977 the British newspaper, the Sunday Times, published an extensive report of its five-month investigation of allegations of the use of torture in the Israeli-occupied West Bank and Gaza. One of the conclusions was that 'Torture of Arab prisoners is so widespread and systematic that it cannot be dismissed as 'rogue cops' exceeding orders. It appears to be sanctioned as deliberate policy.' The investigation team found that Israeli interrogators had beaten prisoners; hooded, blindfolded and hung them by the wrists; sexually assaulted prisoners; administered electric shocks; and in one detention center had confined prisoners in a very small 'cupboard' with concrete spikes set in the floor.
"In an official response to the Sunday Times report, the Israeli Embassy in London denied these allegations, saying: 'All Israeli prisons are open to inspection and such inspections are carried out frequently by judges and representatives of the Attorney General and defense counsel...'
"However, when this response was made, representatives of the International Committee of the Red Cross had access to prisoners only after they reached prison and not while they were still being held in interrogation centers. It is during the period of interrogation, before detainees are moved to prison, that ill-treatment and torture are alleged to occur. At the end of 1977 a new agreement was concluded between the Israeli Government and the ICRC, giving representatives of the latter the possibility of visiting people within 14 days of their arrest—within a week, in some cases—even if they are still being interrogated.
"Amnesty International was sufficiently concerned by the allegations of torture committed by the Israeli security forces to renew its request, in July 1977, that the Israeli Government permit an independent inquiry into the allegations. To this request—as to Amnesty International's earlier ones—the Israeli authorities have not, at the time of writing, replied." 51
The National Lawyers Guild team, after assessing the reports cited above and conducting its own investigation, concluded that "torture is more than the isolated acts of individual interrogations... high Israeli officials are implicated in the torture..." 52
The Swiss League for Human Rights report also is corroborative. 53
For instance, in the absence of the designation of a protecting Power, Article 11 provides for the ICRC performing similar functions, Article 30 provides for access of detainees to the ICRC and other humanitarian organizations and Article 71 requires prompt notification to the protecting Power of certain charges made against detainees. The requirements of these articles also do not appear always to have been observed by the Israeli authorities, since the ICRC was not given the status of the protecting Power, and the Israeli authorities were dealing with it only on an ad hoc basis. In 1970, the ICRC commented that "the Israeli authorities do not spontaneously notify the ICRC delegation of the internment of civilians: they merely reply to enquiries about a specific person." 54 In 1973, Israel agreed to regularly notify the ICRC within 18 days of arrests and detentions but excluded residents of East Jerusalem from this measure. In 1977, when the period was reduced to 14 days, the ICRC commented:
"The former procedure had provided for notification by the Israeli authorities to the ICRC of all arrests of protected persons within 18 days, except for residents of East Jerusalem. This distinction had been maintained, despite the requests of the ICRC, even though it was permitted to visit detainees from East Jerusalem under the same conditions as other protected persons under detention. The procedure had also provided that the ICRC delegates could interview detainees of their choice without witnesses present. They did not have access however to detainees during the period of interrogation following their arrest, a period which the Israeli authorities said should not exceed thirty days.
"The ICRC had noted, however, that the procedure for notification and the period of interrogation was not always respected." 55
There also have been allegations, by some of the bodies whose reports have been referred to, that Israeli actions in the West Bank and Gaza have violated the following articles of the Convention:
—Article 78 prohibiting administrative detention;
—Article 51 prohibiting work of military nature by protected persons;
—Article 52 prohibiting restriction of employment opportunities;
—Article 54 prohibiting alteration of the status of local officials;
—Article 56 requiring maintenance of hospitals and medical facilities;
—Articles 27 and 58 regarding religious practices.
Violations of human rights of the Palestinians in the West Bank and Gaza and consequent violations of the Geneva Convention are the outcome of the very fact of military occupation, as was observed in 1978 by the Special Committee on Israeli Practices in summarising nine years of investigating Israeli practices in the occupied territories:
"In the circumstances the Special Committee cannot but conclude that the Government of Israel consciously follows a policy which is in violation of the Fourth Geneva Convention, in particular article 47 which prohibits annexation of territories under military occupation by the occupying Power and article 49 which prohibits the transfer of citizens of the occupying power into the occupied territories.
"The Special Committee has stated, from its very first report, that the fundamental violation of human rights lies in the very fact of occupation. This is itself the direct cause of a day-to-day pattern affecting the life and liberty of the civilians in the occupied territories. Their life is marked with a pattern of incidents involving various forms of violence and repercussions of these incidents...
"The policies and practices followed by the Government of Israel with regard to the population are complementary to those followed by the Government of Israel with regard to the establishment of settlements in these territories. These policies and practices are reflected in the measures taken by Israeli authorities with regard to civilians. These measures, purportedly taken in an effort to maintain order, fit more logically into the general context of the Israeli 'homeland' policy, since their main purpose is to demoralize the civilian population by putting it before the constant reality of being a people under military subjugation... The vast range of security offences of which a civilian of the occupied territories may find himself guilty is a reflection of the arbitrary nature of the military orders which purport to lay down the law governing his conduct...
"The Special Committee noted that the Government of Israel continues to adopt other measures that reflect its policy of annexation and settlement of the occupied territories. Examples of such measures are contained in reports of expropriation of property by various methods, such as the arbitrary resort to reasons of military security for the purposes of the establishment of settlements... Another example of such measures is reflected in the exploitation of the natural resources of the occupied territories, such as that of the petroleum resources of the Sinai and that of the water-table of the northern West Bank from which the occupying Power currently takes more than half of its water requirements.
"The Special Committee is of the view that the policy of the Government of Israel referred to in the preceding paragraphs has provoked a pattern of resistance on the part of the civilian population. The frequency of the occurrence of incidents... reflects the civilian population's determination to oppose this Israeli policy and to assert its right to self-determination. The resistance thus manifested produces an ever-increasing prison population.
"In the circumstances, the Special Committee cannot but express its profound concern at the continuation of the military occupation and continued deprivation of human rights of the civilian population. The Committee would appeal once more to the international community, through the General Assembly, to assume its responsibilities to end the occupation, thereby safeguarding the most fundamental of the human rights of the population of the occupied territories..." 56
The United Nations has consistently made clear its view that the Geneva Convention is applicable to the territories occupied by Israel. Two recent major resolutions, one by the General Assembly and one by the Security Council, have already been quoted. 57 Numerous resolutions in more specific terms also have been adopted over the last decade by the Commission on Human Rights and the General Assembly by large majorities. The terms of the resolution by both bodies have been largely coincident, and only the most recent resolutions are referred to here to illustrate the United Nations denunciation of Israel's violations of the Fourth Geneva Convention.
The Commission on Human Rights resolution in 1979 declared, inter alia, that the Commission:
"Greatly concerned by the continuation of the violations of human rights and fundamental freedoms by Israel in the occupied Arab territories, particularly the measures aiming at annexation, as well as the continuing establishment of settlers' colonies, mass destruction of homes, torture and ill-treatment of detainees, expropriation of properties and imposition of economic and fiscal measures aimed at the dispossession and exploitation of the population of the occupied territories;
"Expressing its grave anxiety and concern over the deteriorating serious situation in the occupied Arab territories as a result of continued Israeli occupation and aggression, in particular:
(a) the intensification of the establishment of settlers' colonies;
(b) the continued and increasing use of arbitrary detention, torture, ill-treatment and cruel treatment of Arab detainees and prisoners;
(c) collective punishment, in particular the blowing up of Arab houses.
"1. Calls upon Israel to take immediate steps for the return of the Palestinians and the other displaced inhabitants of the occupied Arab territories to their homes and property;
"2. Declares that Israel's grave breaches of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are war crimes and an affront against humanity;
"4. Further condemns administrative and legislative measures by the Israeli authorities to encourage, promote and expand the establishment of settlers' colonies in the occupied territories, which further demonstrate Israel's determination to annex those territories;
"5. Reaffirms that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the occupied territories, or any part thereof, including Jerusalem, are null and void, and that Israel's policy of settling parts of its population and new settlers in the occupied territories constitutes a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and of the relevant United Nations resolutions;
The Commission also condemned specific Israeli practices in the same terms as those in a General Assembly resolution of 1978 in which, inter alia, the Assembly:
"Condemns the following Israeli policies and practices:
(a) Annexation of parts of the occupied territories;
(b) Establishment of new Israeli settlements and expansion of the existing settlements on private and public Arab lands and transfer of an alien population thereto:
(c) Evacuation, deportation, expulsion, displacement and transfer of Arab inhabitants of the occupied territories, and denial of their right to return;
(d) Confiscation and expropriation of private and public Arab property in the occupied territories and all other transactions for the acquisition of land involving the Israeli authorities, institutions or nationals on the one hand, and the inhabitants or institutions of the occupied territories on the other;
(e) Destruction and demolition of Arab houses;
(f) Mass arrests, administrative detention and ill-treatment of the Arab population;
(g) Ill-treatment and torture of persons under detention;
(h) Pillaging of archaeological and cultural property;
(i) Interference with religious freedoms and practices as well as family rights and customs;
(j) Illegal exploitation of the natural wealth, resources and population of the occupied territories.
"Reaffirms that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the occupied territories, or any part thereof, including Jerusalem, are null and void, and that Israel's policy of settling parts of its population and new immigrants in the occupied territories, constitutes a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and of the relevant United Nations resolutions;
"Considering that the policy of Israel in establishing settlements in the occupied Arab territories has no legal validity and constitutes a violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949;
"Calls upon the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;
* * * *
Despite the overwhelming international consensus that has been surveyed, Israel continues to occupy the West Bank and Gaza, and to maintain that the Fourth Geneva Convention is not applicable to the occupied territories.
Pskei Din, Vol. 33 (Jerusalem, 1979)