On the concluding day of the two-day meeting, Mr. Hassouna joined five other experts on a panel that considered the "Enforcement of the Fourth Geneva Convention". Among the proposals presented was that the role of the International Committee of the Red Cross be expanded and that economic and political sanction, as well as diplomatic pressure, be exerted. Following presentations by panellists, a discussion was held.
Other panellists this morning were the Director of LAW, the Jerusalem-based Palestinian Society for the Protection of Human Rights and the Environment, Khader Shkirat; Advocate of the Legal Affairs Division, Department of Foreign Affairs in Pretoria, Miranda Joubert; representative of the International Committee of the Red Cross, David Delparaz; Professor of International Law, Ein-Shams University, Cairo, Ali Ibrahim; and Professor of International Law at Catholic University of Valparaiso, Chile, Farouk Garfe Jarufe.
Statements on Enforcement of the Fourth Geneva Convention
KADER SHKIRAT, Director of LAW, the Palestinian Society for the Protection of Human Rights and the Environment, Jerusalem: Given the long history of Israeli violations, it is surprising that only now is there a discussion of how to make Article I of the Convention work. The long-overdue enforcement of the Convention should happen immediately. What determines enforcement, as envisaged by Article I, are the violations. Article I calls for a higher level of enforcement than many States would be interested in accepting. A basic measure is the duty to monitor belligerent actions. The results of monitoring have frequently led to the second level of enforcement -- demands that the occupying Power respect the Convention -- but Israel has ignored international consensus. If the Geneva Conference is to be meaningful, it will discuss actual measures of enforcement.
Article 47 stipulates the duty to pursue, capture and try those suspected of grave breaches. Enforcement akin to intervention as spelled out in Chapter VII of the Charter is unlikely to occur. Any enforcement action needs to be time-limited and cannot be enforced in perpetuity. The High Contracting Parties should not pursue objectives that have been tried and failed, such as monitoring. They should not merely pass a resolution like that of the Emergency Special Session which failed to bring about Israeli respect. Enforcement measures should end when Israel demonstrates respect for the Convention.
Enforcement measures include auditing economic cooperation where Israel benefits from direct aid, technical and other assistance, preferential trade arrangements and access to markets. Scientific, educational and cultural cooperation, including exchanges of personnel, knowledge and technology and cooperation between Israel and the Parties on security is also covered. Israel must confirm that information or skills provided are not obtained through violations of the Fourth Geneva Convention. States should apply human rights conditions to cooperation agreements. Further, they should question the charitable status and tax breaks accorded to agencies which operate outside Israel and raise funds which lead to violations. Israel should not be able to export goods that originate from settlements.
Importantly, High Contracting Parties are obliged to ensure respect by other High Contracting Parties, not just the occupying Power. States should seek to ensure that there is a common approach to enforcement. By failing to act, they damage the integrity of the international system, specifically treaties that are intended to protect individuals from abuse.
MIRANDA JOUBERT, Advocate, Legal Affairs Division, Department of Foreign Affairs, Pretoria: Mechanisms on the national level for the implementation of the Fourth Geneva Convention include the establishment of a National Committee to oversee the implementation of international humanitarian law; enactment of legislation to make such law domestically applicable; ratification of or accession to international humanitarian law instruments; establishment of national dissemination programmes to educate the government, military and civilian populations; incorporations of sanctions against violations into domestic law; and government support for humanitarian organizations such as the International Committee of the Red Cross (ICRC).
At the international level, High Contracting Parties can support the International Criminal Court and cooperate with other States to enforce international humanitarian law, impose sanctions, compensate victims and extradite offenders. In particularly serious violations, States can act individually and jointly with the United Nations in conformity with the Charter. Actions may include Security Council and General Assembly statements and resolutions. Where violations are a threat to international peace and security, the Council can impose economic sanctions or armed intervention. States may also exchange information about dissemination, interpretation and application of international humanitarian law instruments.
Other forceful actions include the use of the international fact-finding Commission, the establishment of a monitoring process, open inquiries regarding alleged violations, diplomatic pressure and coercive measures, such as the expulsion of diplomats of States deemed to be in breach of international humanitarian law, trade restrictions, sanctions or bans, halting of negotiations, the freezing of capital and/or the suspension of air transport.
DAVID DELPARAZ, representative of the ICRC: Though most international humanitarian law must be implemented whether or not national legislation has been adopted, others require the adoption of legislation or internal regulations. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Most importantly, States must have criminal sanctions for serious violations of humanitarian law, such as war crimes. International humanitarian law demands that the States search for and punish all persons who have committed grave breaches of the law, regardless of where the breach was committed. They must bring those persons before their own courts or hand them over to a State Party to the Convention for prosecution. The International Criminal Court should serve to strengthen the implementation of humanitarian law.
The Protecting Powers can also lend their good offices in the event of a dispute between the warring parties over application or interpretation of the Convention's provisions. In addition, their representatives are entitled to visit all places where protected persons are located. In practice, a large number of tasks have been taken on by the ICRC, which has been granted a de jure right of initiative, enabling it to undertake activities on behalf of the civilian population. The Organization enjoys the same right as the Protecting Powers regarding access to protected persons. Since 1967, the ICRC has been permanently present in the occupied territories.
While the interested parties may agree to an inquiry into an alleged violation, in practice it has been difficult to reach agreement between warring parties on such an inquiry. The ICRC welcomes individual and joint efforts by States parties aimed at discharging their obligations and enhancing respect for international humanitarian law, but the methods employed to fulfil these legal and political responsibilities must not be in contradiction with the Charter or international public law. The ICRC must continue to act in a neutral and independent manner, free from politically motivated restraints. ALI IBRAHIM, Professor of International Law, Ein-Shams University, Cairo: The enforcement of the Geneva Convention requires that each individual's rights are protected. The Israelis misinterpret international law by referring to national law. However, States are not free to interpret international law in terms of their domestic law. That principle was established to prevent States from shirking their responsibility. The rights of the Palestinian people cannot be ignored on the basis of history or religion, which are not sources of law. The sources of international law are conventions, international law and customary international law. Israeli laws which allow violations of the Convention are racist and discriminatory. They allow foreigners to immigrate to Palestine, but do not allow Palestinians to return to their own land.
The International Court of Justice has confirmed the supremacy of international law over domestic law in numerous cases. The Courts of Israel must apply international law. International law does not recognize humanitarian or security justifications. Colonialism has been eradicated in all parts of the world except Israel. The mass deportation of Palestinians and replacing them with foreigners is banned by international law. The expropriation of land, granting of long-term loans that are later forgiven, and providing settlers with arms are part of a colonialist and premeditated policy. With five million Palestinians living outside of Palestine, what right does Israel have to bring in foreigners? These actions pose a threat to international peace and security and violate international law. The Conference must take strong stands against the Israeli practices. International hypocrisy should end. Those States which support Israel financially are partners in the crimes perpetrated by Israel. They should end such support.
HUSSEIN A. HASSOUNA, representative of the League of Arab States: Despite recent developments in the field of international humanitarian law, there is a widening gap between the rules and their actual application. It is necessary to ensure compliance of all parties and to devise effective mechanisms for implementation. In dealing with humanitarian issues, the United Nations must often deal with the challenge of how to refrain from politicizing issues, avoid selectivity and double standards; avoid using humanitarian action as a substitute for necessary political action; and reconcile the preservation of sovereignty of States with the growing drive to protect human rights world-wide.
Lengthy legal debate over the applicability of the Fourth Geneva Convention should be minimized. Efforts should be centred on the practical problems arising from occupation and practical steps for early solutions. The most effective way to end violations of international humanitarian law is to deal with the underlying issues -- in this case, to end the occupation. Success depends on the cooperation of the parties concerned and on the international community's readiness to adopt a clear and firm position vis-a-vis the recalcitrant party.
The ICRC could play a role in assessing the effectiveness of mechanisms provided for under the Convention. The Parties to the Convention are obliged to take concrete action to ensure respect for the Convention and not merely to rebuke or condemn the violating State. In cases of serious violations, the Charter offers a variety of measures, including coercive ones. The High Contracting Parties meet periodically to create an institutionalized forum for effective collective action and to monitor implementation of the Convention in Palestinian territory or any other occupied territory. The Geneva Conference should reach consensus within a constructive dialogue between all parties, one devoid of accusations and mutual recriminations.
The Conference should support reactivation of the International fact-finding Commission as an effective monitoring and verification system, as well as enhance the valuable role of the ICRC in ensuring the application of the Convention. There should be support for the positive role other humanitarian, governmental and non-governmental organizations and civil society can play.
FAROUK GARFE JARUFE, Professor of International Law, Catholic University of Valparaiso, Chile: The establishment of international courts is changing the situation regarding the implementation of international law. The development of the Courts stems from the weakness of international law which is limited by individual political concerns. The Geneva Conventions were promulgated 50 years ago and reflect the reality of that time when States had almost unlimited rights. The international organizations were the only subjects of international law. States were not ready to give way to international law or the rights of the individual. The Fourth Geneva Convention offers no decisive power and is weak regarding control and guarantees. Not all States have included it in their domestic law. In many instances, low courts do not adequately punish those who breach the law.
States have not always shown the necessary political will to implement the Convention. Israel violates more international laws than any other State, and with complete impunity. The last State which did this was Germany. The Security Council and the Assembly have stated that the Fourth Geneva Convention is applicable to the occupied territories and must be implemented, but Israeli policy has not changed.
The High Contracting parties can create a Commission with fact-finding and mediation functions that would apply in times of war or on given territories. They can adopt economic sanctions under Charter provisions. Grave violations by Israel should be brought to the International Criminal Court once it has assumed its functions. The High Contracting Parties can also enact complementary national legislation. They might also hold a special conference to perfect the Convention. The Parties must respect and ensure respect for international law by acting when provisions are flouted by the States on whose territories violations are committed. No State should accept immunity from prosecution for war crimes granted by another State.
Representative of Lebanon: Israel occupies Syrian Golan lands and territory in South Lebanon despite Council instructions for it to withdraw immediately. Lebanese and Palestinians in South Lebanon have been subjected to serious violations of international humanitarian law, particularly women and children. Lebanese fishermen are intercepted off Lebanese shores and fired upon. Constant harassment prevents freedom of movement. Mines are planted and indiscriminately kill civilians. The Fourth Geneva Convention is violated daily in South Lebanon.
MAZIN QUPTY, Jerusalem-based attorney: Palestinians have few legal options. Since 1967, the only legal means a Palestinian has is to turn to the Israeli Supreme Court. It is the only chance he has to end administrative arrests or land confiscation. Perhaps Israel could be shown examples of legal proceedings in other countries which established the supremacy of international law. So far, no measures have been described in today's meeting that take into account realities in Israel. It would be helpful to hear proposals that could realistically be used in the occupied territories.
PARTICIPANT: Israel, a State which pretends to be democratic, persists in the perpetration of war crimes. The High Contracting Parties which support Israel should abstain from their functions as High Contracting Parties. The North Atlantic Treaty Organization (NATO) is trying to return the children of Kosovo to their homeland. When will Palestinians be returned to their home?
MR. IBRAHIM: The United States and France have had court cases which ruled in favour of the supremacy of international law. The Israeli Supreme Court is not a court because it allows torture and the violation of all humanitarian law. It has not passed one sentence in favour of a Palestinian. Israel signs conventions for the purpose of cheap publicity. A democratic State must respect international law.
Representative of the Arab Lawyers Union: The question of enforcement of international law is most difficult. It may be necessary to create public awareness of international humanitarian law. The Conference must support and consolidate the role of the ICRC.
Representative of Palestine: Palestinians do not give any importance to the Israeli Supreme Court. What is meant by Israel's commitment to the Fourth Geneva Convention, given its continued violation of international law?
ABDUL KARIM BENSIALI, Director, International Federation of Red Cross and Red Crescent Societies (IFRC): The IFRC continues its efforts in the Palestinian autonomous and occupied territories, working closely with the Palestinian Red Crescent society, but the challenges are increasing. The international community needs to continue to assist the Palestinian people, particularly given the problems ensuing from living in densely populated areas. The World Bank has stated that 40 per cent of the population in Gaza and 10 per cent of that in the West Bank live in poverty. Housing, education, infrastructure, environmental and health needs are not being adequately met. The needs of workers, youth, the disabled and the elderly are many.