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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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Source: Division for Palestinian Rights (DPR)
1 January 1979


THE QUESTION OF THE OBSERVANCE
OF THE FOURTH GENEVA CONVENTION OF 1949
IN GAZA AND THE WEST BANK
INCLUDING JERUSALEM
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

UNITED NATIONS

New York, 1979



CONTENTS
I.
INTRODUCTION
1
II.
THE QUESTION OF THE RELEVANCE OF THE FOURTH GENEVA CONVENTION TO THE WEST BANK AND GAZA
3
III.
ALLEGATIONS OF ANNEXATIONIST POLICIES BY ISRAEL: LAND EXPROPRIATIONS AND ISRAELI SETTLEMENTS IN THE OCCUPIED TERRITORIES
15
IV.
ALLEGATIONS OF FORCED TRANSFERS OF PALESTINIANS AND DENIAL OF THEIR RIGHT OF RETURN
28
V.
ALLEGATIONS OF POLICIES OF COLLECTIVE PUNISHMENTS
32
VI.
ALLEGATIONS OF ILL-TREATMENT AND TORTURE OF DETAINEES
37
VII.
CONCLUSIONS
45
Notes and References
51



I. INTRODUCTION


In the wake of the Second World War, representatives of almost every established State met in Geneva in 1949 to sign revised Conventions intended to cope with the effects of the new phenomenon of "total war" on civilian populations as well as on military personnel. Rules of warfare had been codified earlier in the Hague Conventions of 1907, and new conditions emerging in the First World War had led to modified Conventions in 1929, dealing mainly with military personnel.

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:

Conditions in the territories occupied by Israel in Egypt and Syria are outside the scope of this study, which is concerned with the applicability of the Convention in the territories in the former Palestine Mandate occupied by Israel in June 1967, namely the Gaza Strip and the West Bank, including Jerusalem.

________________

* UN Document A/8089, paras 41 and 42.



II. THE QUESTION OF THE RELEVANCE OF THE FOURTH GENEVA CONVENTION TO THE WEST BANK AND GAZA

The first question that arises is whether the Convention is applicable to the territories in question following Israel's occupation. This issue has come up on several occasions in various organs of the United Nations, including the General Assembly and the Security Council.

The Convention has been signed by all States directly involved in the Middle East issue; ratification entered into force on the dates indicated below:

Egypt10 May1953
Israel6 January1952
Jordan29 November1951
Lebanon10 October1951
Syria4 May1954
All these States thus are bound to observe the Convention. The clauses of the Convention relevant to the question of applicability read as follows:

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:

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:

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*:

__________________

* 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:

______

* 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:

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:

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:

In 1973, the ICRC report commented:

In 1975, the ICRC declared:

The 1976 report of the ICRC comments:

Another authoritative and objective body, the International Commission of Jurists (ICJ), has the following comments on Israel's arguments:

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:

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:

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:

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


On the political plane a principal concern of the Convention is the prohibition of the annexation of territory by an occupying Power, and the transfer of population that could result.

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:

On 22 March 1979, the Security Council adopted a resolution in which the Council:

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:

In his comments on the Security Council's consideration of the report, Israel's representative reiterated Israel's claims to annex the occupied territories:

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:

In its 1973 report, the Special Committee cited specific statements by Israeli leaders, including the following:

Similar evidence and conclusion appear in the Special Committee's report for the following years; excerpts from the most recent, in 1978, follow:

The International Commission of Jurists expresses similar views:

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:

The ICRC also has commented on Israel's policy of expropriations. For instance:

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:

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:


IV. ALLEGATIONS OF FORCED TRANSFERS OF PALESTINIANS AND DENIAL OF THEIR RIGHT OF RETURN


Article 49 of the Fourth Geneva Convention, while permitting evacuations for "imperative military reasons", prohibits transfers of population of the occupied territory:

Excerpts from the ICRC Commentary on this article are:

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:

The ICRC also has commented:

The National Lawyers Guild report also contains information on forced displacements of Palestinians in a section entitled "Involuntary Resettlement of the Gaza Population." 31


V. ALLEGATIONS OF POLICIES OF COLLECTIVE PUNISHMENTS

The Fourth Geneva Convention expressly prohibits collective punishments, reprisals and destruction of property:

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 Convention also limits the type of penalties that can be imposed on persons who commit offences against the occupying Power:

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:

ICRC reports corroborate those of the Special Committee, as indicated below:

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


VI. ALLEGATIONS OF ILL-TREATMENT AND TORTURE OF DETAINEES

Torture and ill-treatment of protected persons, and particularly of detainees, are totally prohibited by the Convention:

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:

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:

Over the years, however, the Committee appears to have become more convinced, stating in its 1976 report:

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 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:

An ICRC report in 1970:

In 1977, the Special Committee noted further information from the ICRC:

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";

A Member of the Executive Committee of Amnesty International commented:

The 1978 Amnesty International reported:

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


VII. CONCLUSIONS

The investigations cited in the preceding sections have found that Israeli actions in the West Bank and Gaza have violated several articles of the Fourth Geneva Convention other than those specifically cited already.

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:

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:

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:

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:

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:

Most recently the Security Council, after examining the report of the Commission established by it to investigate Israel's policy on settlements in the occupied territories, 60 adopted a resolution in which the Council:

* * * *


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.


NOTES AND REFERENCES

(1)Pictet, Jean (ed.)Commentary: IV Geneva Convention (Geneva, International Committee of the Red Cross, 1948)
(2)United NationsDocument A/32/PV.47 (26 October 1977), pp. 46-48
(3)US GovernmentThe Colonization of the West Bank Territories by Israel — Hearing before the Sub-Committee on Immigration and Naturalization of the Committee on the Judiciary, United States Senate, Ninety-fifth Congress (Washington DC, 1978), pp. 26, 33-35
(4)Ibid., pp. 47-51
(5)Rabbinical Court of IsraelHC 606/78 and HC 610/78 (the Beit-El and Bekaoth cases)

Pskei Din, Vol. 33 (Jerusalem, 1979)

(6)HCJ 390/79 (the Elon Moreh case)— to be published in Pskei Din, Vol. 34 (1980)
(7)US GovernmentForeign Relations of the United States (Washington DC, US Government Printing Office, 1873), Vol. IV, p. 51
(8)ICRCAnnual Report 1968, pp. 33-34
(9)ICRCAnnual Report 1973, p. 6
(10)ICRCAnnual Report 1975, p. 22
(11)ICRCAnnual Report 1976, p. 11
(12)"Israeli Settlements in Occupied Territories", in The Review of the International Commission of Jurists, No. 19, December 1977
(13)ICRCAnnual Report 1977, p. 9
(14)US GovernmentOp.cit., p. 179
(15)National Lawyers GuildTreatment of Palestinians in Israeli-Occupied West Bank and Gaza (New York, 1978), pp. vii-viii
(16)UNReport of the Security Council Commission Established under Resolution 446 (1979) Document S/13450 (12 July 1979), paras. 220-234
(17)UNDocument S/13852, 22 October 1979
(18)UNDocument A/8389, 5 October 1971, p. 4 and paras. 47, 48 (b) (viii)
(19)UNDocument A/9148, 25 October 1973, paras. 42, 43, 140, 141, 149
(20)Ibid., para. 128
(20)Op. cit., p. 35
(22)National Lawyers GuildOp. cit., p. 21
(23)UNDocument A/9148, paras. 79, 86, 139
(24)ICRCAnnual Report 1970, p. 54
(25)ICRCAnnual Report 1972, p. 72
(26)Cases cited at note 5
(27)Case cited at note 6
(28)PictetOp. cit., pp. 279, 280, 281
(29)UNDocument A/8389, paras. 48 (h), 50, 51, 72, 73
(30)ICRCAnnual Report 1971, pp. 49, 50, 51
(31)National Lawyers GuildOp. cit., pp. 21-27, 78
(32)PictetOp. cit., p. 225
(33)Ibid., p. 302
(34)UNDocument A/8089, 5 October 1970, paras. 124, 126, 129, 131
(35)UNDocument A/9817, 4 November 1974, paras. 165, 166
(36)UNDocument A/10277, 27 October 1975, para. 179
(37)ICRCAnnual Report 1968, pp. 35-36
(38)International Review of the Red Cross September 1970, pp. 492-493
(39)ICRCAnnual Report 1971, pp. 49-50
(40)ICRCAnnual Report 1974, p. 28
(41)National Lawyers GuildOp. cit., pp. 61-66, 73-74
(42)UNDocument A/8089, para. 78
(43)UNDocument A/8828, para. 90
(44)UNDocument A/31/218, 1 October 1976, para. 351
(45)UNDocument A/32/284, paras. 230, 231, 252, 253
(46)UNDocument A/8089, paras. 106-108
(47)ICRC The Middle East Activities of the ICRC September 1970, No. 114
(48)UNDocument A/32/284, para. 255
(49)Amnesty InternationalReport on the Treatment of Certain Prisoners under Interrogation in Israel, (Press Statement) London, April 1970, pp. 2-5
(50)Arbelderbladet (Oslo), 4 April 1970
(51)Amnesty InternationalReport: 1978, p. 263
(52)National Lawyers GuildOp.cit., pp. 113-114
(53)US GovernmentOp. cit., pp. 182-183
(54)ICRCInternational Review of the Red Cross, September 1970, No. 114, p. 507
(55)ICRCAnnual Report 1977, p. 9
(56)UNDocument A/33/356, paras. 128, 129-132, 134
(57)pp.. 15-16 supra
(58)UNResolution 1 (XXXV) of 21 February 1979
(59)UNResolution 33/113 of 18 December 1978
(60)pp. 16-17 supra
(61)UN Resolution 452 (1979) of 20 July 1979.


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