Legal Adviser to the Arab Organization for Human Rights Taher Shash said the establishment of Israeli settlements in the occupied territories was a violation of many international principles. Though Israel stated that it was committed to humanitarian principles, it continued to blatantly violate human rights, he added. The settlements were meant to create new realities, bringing larger areas under Israeli authority.
Houston University Law Professor Jordan Paust said that Israel had violated several laws during its occupation of Palestinian territories, and both civil and criminal sanctions for such infractions were possible. The Geneva Conventions expressly recognized the fundamental right to be treated humanely and specifically prohibited violence to life and persons; taking of hostages; outrages upon personal dignity; and the passing of sentences and carrying out of executions without the judgement of a regularly constituted court.
According to article 4 of the interim agreement, the Israeli military Government retained legislative, judicial and executive powers and responsibilities over specific areas in the occupied territories, Jerusalem attorney Mazin Qupty said. Israel had been able to usurp large areas of Palestinian lands by a variety of methods, all of which were covered under special Israeli laws. The Israeli official legal position was that, to be applied in Israeli courts, the Convention had to be a part of Israeli local law. According to their reasoning, the Convention was not part of customary international law, so it could not be a part of Israeli local law.
Also this afternoon, a statement was read out on behalf of the Secretary-General of the Arab Lawyers Union, Cairo, Farouk Abu Eissa.
Following their presentations, the panellists took questions and comments from the floor.
The meeting will resume tomorrow morning at 10 a.m. to hear panellists discuss "Enforcement of the Fourth Geneva Convention".
Presentation by Experts on 'Violations by Israel, the Occupying Power, of the Provisions of the Fourth Geneva Convention in the Occupied Palestinian Territory, Including Jerusalem'
TAHER SHASH, Legal Adviser to the Arab Organization for Human Rights: International law states that sovereignty is not transferred to the occupying Power. It bans annexation. Article 55 of the Fourth Geneva Convention stipulates that the occupier is only the manager and provides protection for public funds. It compels the occupying Power to respect the rights of the people. A principle of international law is that treaties place obligations on the parties and it is up to the parties to implement the provisions of the agreements. Israel claims that the Fourth Geneva Convention does not apply to Israel in the occupied territories. This was not Israel's stand when it occupied the territories in June 1997. Israel later cancelled its own provisions and issued statements declaring the occupied territory part of "Eretz Yisrael". The official Israeli stand is that since Israel does not recognize Jordanian or Egyptian sovereignty over the West Bank and Gaza, the Convention does not apply.
The Convention states that all the provisions should apply to all High Contracting Parties. Protected persons should not be deprived in any case of the protection of the Convention. No State has the right to shirk its responsibility. The length of occupation does not prevent Israel from applying the Convention. The international community has expressed itself against Israeli violations of its obligations under the Convention. Foreign occupation does not transfer sovereignty to the occupying power. Yet, Israel has annexed East Jerusalem and violated its obligations in the occupied territories. Israeli settlements are meant to create new realities bringing larger areas under Israeli authority. Their establishment is a violation of many international principles. Though Israel continues to say that it is committed to humanitarian principles, it continues to blatantly violate human rights.
FAROUK ABU EISSA, Secretary-General, Arab Lawyers Union, Cairo: In a statement read out by Raji Sourani, Israel refuses to recognize the territories as being occupied. When Netanyahu came to power in Israel, he intensified Jewish settlements in the occupied territories. Israel is a military occupying Power and is, thus, committed to applying the provisions of the Convention. The General Assembly called on the Swiss Government to prepare for the meeting of the High Contracting Parties. The Swiss performance, however, was not in accordance with the United Nations resolutions or that of a State which is the depository of the Convention.
Due to the importance of convening a conference, there are many issues that should be seriously considered in enforcing the Convention and providing protection to civilians. Before now, the Contracting Powers have never been called on to meet to discuss measures to enforce the Convention. The results of the Conference will affect the destiny of the Convention in various parts of the world. The Conference is not an objective in itself, but should help the States to carry out the tasks set forward in the Convention. Violation of the Convention was a threat to international peace and security. The Government of Switzerland should put the interests of Palestinians first and foremost. What it has done so far is not in harmony with the intentions of the United Nations.
JORDAN PAUST, Professor of Law, Houston University: Applicability of the Geneva Civilian Convention to the territories occupied by Israel in the West Bank, Gaza and East Jerusalem has been affirmed by the United Nations, the International Committee of the Red Cross and the vast majority of States. Several violations of such law have occurred during the occupation, and both civil and criminal sanctions for such infractions are possible.
With regard to the applicability of Geneva law and other laws of armed conflict to the protection of civilians in occupied territories, the Geneva Conventions expressly recognize the fundamental right to be treated humanely, as well as specific prohibitions of violence to life and persons; taking of hostages; outrages upon personal dignity; and the passing of sentences and carrying out of executions without the judgement of a regularly constituted court. Collective penalties and all measures of intimidation are prohibited, as are reprisals against protected persons and their property. The claim that -- one of them did wrong; they must be punished -- "is tribalistic, potentially genocidal and serves the evil of impermissible discrimination".
The Convention further prohibits individual or mass forcible transfers; deportations of protected persons, regardless of their motive; and the transfer by the occupying Power of parts of its own civilian population into the territory it occupies. Whatever occurs through a peace agreement between Israel and the Palestinian people concerning the occupied territories in general, the central walled portions of the city of Jerusalem should be an international city.
Under international law, both civil and criminal sanctions are available against any individual who violates the laws of war. Every violation of the law of war is a war crime over which there is universal jurisdiction and responsibility. There is no immunity for such violations, even if committed by a head of State, diplomat or other official. Any form of domestic impunity, amnesty, pardon, statutes of limitation or other impunity under Israeli or other domestic law is not binding at the international level. Under international law, any tribunal might provide civil or criminal sanctions against those who have violated humanitarian law during the Israeli occupation of the West Bank, Gaza and East Jerusalem. Under such law, reparations can also be paid by the State which has responsibility for violations of humanitarian law.
MAZIN QUPTY, Attorney-at-Law, Jerusalem: The Israeli/Palestinian interim agreement did not change the status of the West Bank and Gaza. So-called "B" and "C" areas in the West Bank are still under the Israeli control. According to article 4 of the interim agreement, the Israeli military Government retains legislative, judicial and executive powers and responsibilities. Israel has a law which states that land not cultivated for three years can be transferred to another person. By preventing Palestinians from accessing their lands for three years, they were able to transfer 1,200,000 dunums of land to Israelis. Israel also declared Palestinian lands to be government property. Whenever it undertook such actions against Palestinians, there was an attempt to make them "legal".
The Basic Law of Jerusalem of July 1980 states that the area of East Jerusalem was annexed in 1967 as an integral part of Jerusalem. No State in the world has recognized Israel's annexation of East Jerusalem. Among other things, it violated the prohibition of acquisition of land by force, as well as the Palestinian right to self-determination. There has been a major demographic change in the last 32 years. There has been a great increase in the amount of Jewish Israelis in East Jerusalem and a transfer of Palestinians out. According to Israeli law, any permanent resident can lose his citizenship if he resides abroad for seven years, even as a student, if he gets a permanent residency in another country or if he takes citizenship in another country. Thus, if he moves a few metres on the other side of the line of East Jerusalem, he may lose his residency in East Jerusalem.
The Israeli official legal position is that to be applied in Israeli courts, the Convention has to be a part of Israeli local law. According to their reasoning, the Convention is not a part of customary international law, so it cannot be a part of local law. Using Israeli law, however, it is possible to apply the Convention. Should part or some provisions of the Convention be a part of customary law, the Israeli Court has to implement it. According to internal rules contained in a General Staff Order issued in 1982, all Israeli Defence Forces are required to act in accordance with the Geneva Conventions.
In the discussion, which followed the statements by members of the panel, participants expressed a variety of views.
PARTICIPANT: Israel has no justification for claiming that the Convention is not part of customary law since the International Court of Justice has declared it to be so. A court which allows torture cannot be allowed to decide what is not a part of international customary law.
PARTICIPANT: The Israeli argument that the territories were not sovereign territories before the occupation certainly did not apply to the Golan Heights, which was clearly a Syrian territory.
Mr. SHASH: The position of the Israeli courts is bizarre. They admit that the territories are occupied, but they do not say so expressly. In some judgements, the Israeli courts refer to The Hague rules as customary law.
Mr. QUPTY: It is not easy to convince people that the Israeli Court is wrong. The Court has many arguments that appear convincing even when one does not agree. In one case, when the Court ruled against the establishment of a particular settlement, its judgement was based on Israeli local law, not international law.
PARTICIPANT: In Lebanon, the Geneva Convention clearly applies. The Israeli courts were schizophrenic. When it adjudicates matters related to Israeli Jews is fantastic. The situation is completely different when it is applied to Palestinians. In his 24-year experience as a lawyer regarding the issues under discussion, he had never won a case.
PARTICIPANT: The Convention does not apply because there is no case of war. The Genocide Convention should be invoked because it is a question of genocide. There are not two Powers, there is an aggressor and a helpless people. The Geneva Convention is inapplicable because the occupying Power kills and wounds the civilians living under occupation. The Palestinian people does not have a force of its own.
NASSER AL-KIDWA, Permanent Observer for Palestine to the United Nations: One could argue that the Convention on the Crime of Genocide is also applicable, but not that the Geneva Convention does not apply. It is not a matter of the level of the strength of the power involved.
Mr. PAUST: It is obvious that if Israel and Egypt are involved in an armed conflict, the Geneva law applies. It has been widely recognized that common article 3 is a minimum set of guarantees that applies to all persons regardless of the status of territory. Under international law, if Israel does not incorporate treaty law into local law, it is in violation of the treaty.
Mr. SHASH: Any State which recognizes a treaty is bound by that treaty and can be sanctioned if it tries to avoid application.
Mr. PAUST: A special entity could be authorized by the Conference to monitor reports of whether and how provisions are being implemented.