Panellists discussed possible outcomes of the upcoming Conference. Participating in the presentations were Professor of International Law (Paris XI) Paul Tavergnier; Professor of International Law, Cairo University, Ahmed Hassan Al-Rashedi; Legal Counsel of the Ministry for Foreign Affairs for Bangladesh, Akh Morshed; Director of Postgraduate Affairs, Hull University Law School, United Kingdom, Hilaire McCoubrey; and Professor of International Human Rights Law, Quebec University, William Schabas.
Participants raised questions and comments in the period following the panel discussion.
Closing remarks were made by the Chairman of the Committee, Ibra Deguene Ka; Committee Rapporteur George Saliba; and the Permanent Observer for Palestine to the United Nations.
The two-day meeting was attended by representatives of 100 governments, as well as representatives from numerous intergovernmental and non-governmental organizations, media and the private sector. Participants heard presentations by expert panellists on Israeli violations of the Fourth Geneva Convention, means of enforcing the provisions of the Convention and possible outcomes of the Conference to be held in Geneva on measures to enforce the Fourth Geneva Convention.
PAUL TAVERGNIER, Professor, University of International Law, Director of Research and Studies Centre for Human Rights, Paris: The rules contained in Article I, common to all the Conventions, are supported in Article 142 and ensuing Articles of the Fourth Geneva Convention. A second group of rules are contained in international humanitarian law. There are provisions in the Fourth Convention which apply to the obligation of States.
The rules for implementation of international law are weak and may not rest in the rules of the United Nations Charter and the United Nations system. More and more the international organizations are becoming involved with humanitarian law. It is a welcome evolution, although it could give rise to problems as in the situation regarding prisoners and chemical warfare in the Iran/Iraq conflict. The Council, however, has been more or less stymied in Jerusalem.
There are possible actions that could help to implement the Fourth Geneva Conventions. It could consider asking the International Court of Justice for an advisory opinion. That is a procedure open to the Council and the Assembly. There is a question about the distinction between de jure and de facto applicability. The Court can be asked a specific and urgent question which might help produce a prompt answer. There is also the possibility of having the Council or the Assembly establish a fact-finding Commission using precedents established in Rwanda, the former Yugoslavia and Zaire or, a body similar to the Human Rights Commission. The Palestinian Rights Committee could compute and give to the Conference a table of all the violations committed by Israel that have been observed by United Nations bodies and refer them to specific provisions of the Convention. Suggestions should be made to the Conference about economic pressures.
AHMED HASSAN AL-RASHEDI, Professor of International Law, Cairo University: It is no longer acceptable for a State to occupy the territory of another State. Israel should withdraw from all the occupied territories. The international community should seriously consider international guarantees to safeguard peace. Jerusalem has been an open city throughout its history. It is up to the upcoming Geneva Conference to remind Member States, especially Israel and the United States, that the governing principles of the Conventions have global respect. Commitment to its provisions must be strengthened. There are 188 signatories as of 31 January, while there are only 185 Member States in the United Nations.
Article I stipulates a legal commitment to implement the provisions of the Conventions. The Fourth Geneva Convention takes into account humanitarian issues, giving it supremacy over military considerations. It calls on the State in question to preserve the rights of the people. Another governing principle calls for the Conventions to stop any High Contracting Party from violating its provisions. A most important governing principle compels the occupying Power to enable international organizations like the International Committee of the Red Cross (ICRC) to carry out their responsibilities. The mechanisms for enforcement contained in the Convention are sufficient if they are implemented. Israel should be urged to deal seriously with the provisions of the Convention. That matter does not seem to be clear to the other High Contracting Parties.
The new mechanism of the International Criminal Court must be examined to guarantee that there is a strong deterrence to Israel. Crimes against humanity are spelled out in the Statute of the Court. The Conference should also confirm the need to mobilize public opinion against Israel. It is important that the Conference insist that the international community adopt a strong position against the continuation of the Israeli settlement policy. The international community should strive to compel Israel to implement international laws and resolutions to end the occupation. The United Nations should not leave questions of peacekeeping or international peace and security to one Power. It is important that this meeting support the convening of the Conference so as to outweigh other forces that are trying to undermine it.
AKH MORSHED, Legal Counsel, Ministry for Foreign Affairs of Bangladesh: The main task of the upcoming conference is to reconfirm the characteristics of the Convention. The legal basis may not lie exclusively in the United Nations resolutions, but may be found in the Convention itself. According to Article 142, the High Contracting Parties may not relieve themselves of their responsibilities under the Convention.
The underlying scheme of the Geneva Conventions is the protection of the human rights of the various classes of persons, particularly those under occupation. The Fourth Convention lies close to the roots of international humanitarian law. The most important provisions have evolved into customary international law. They are legally self-fulling.
The application of the provisions is not contingent on national law. An obtainable outcome of the conference is the designing of a document that offers a legally obtainable platform of consequences with recent developments in international humanitarian law, human rights instruments and the rules and resolutions of the bodies of the United Nations. The Conference will establish a precedent in the area of international law which is evermore peremptory and urgent.
HILARE MCCOUBREY, Director of Postgraduate Affair, Hull University Law School, Hull, United Kingdom: In any law, enforcement is the last resort. Over a period of years, international law has not been able to protect the people in the occupied territories. Enforcement should secure meaningful implementation. The responsibility for maintaining the Convention lies under Article I and demands that States should, at an absolute minimum, use all good offices to secure implementation. The Conference should seek to ensure respect in all circumstances. The primary duty of enforcement actually lies on the Israelis themselves. The minimum code should be applied and maintained and those who violate it should be punished. That has not been happening. The Conference should take up this matter.
Israel gives Palestinians the right to bring matters before its Supreme Court. The international community could bring pressure to make this right meaningful. Although there is a concept of protecting powers, few protecting powers have been appointed. An expanded role of the ICRC could be contemplated. If a State claims it is doing nothing wrong, why should international bodies not be able to observe? Advisory bodies might be a useful way towards enforcement. The International Court of Justice, however, is wary of advisory opinions in highly controversial issues. A specific international criminal court such as those for Rwanda and the former Yugoslavia is possible in theory but unlikely in practice. The new permanent Court might also represent a way forward.
The question of implementation concerns legal issues, but the will to carry it out is political. It is necessary to find an effective means such as diplomatic and economic pressure. The present situation is not of benefit to anyone. It would be beneficial to Israel to resume normal international relations with its neighbours. The ultimate success of the Conference to enforce the Convention would be to end the occupation. In the process of peace and confidence building, the troubles, suspicions and tragedies that have gone on before must be removed from the atmosphere. The process of Truth and Reconciliation Commissions can be considered.
PARTICIPANT: The real issue is not the Geneva Convention but the refusal of Israel to fulfil its obligations. Resort to the Genocide Convention is preferable.
Mr. SHASH: The focus of this meeting is the Geneva Convention not the Genocide Convention.
PARTICIPANT: Most of the measures being proposed have been in the political field. People from the field of law should examine the issue. Israeli courts are dealing in a discriminatory way between Jews and Palestinians.
PARTICIPANT: Israel violates the Fourth Geneva Convention daily. Should we accept the fact that Israel is a super-Power or are there other ways to deal with it. The members of the European Union recognize the Israeli borders that were in place before June 1967. Israel has joined in partnership with the European Union, and it could apply economic pressure that would lead to important results. The exports from the Israeli colonies are affected by the declared position of the Europeans. European Union regulations compel its members to levy material and financial compensation for violating their agreement. The European Union must take a clearer stand and suspend Israel's partnership unless it abides by the rules.
NASEER AL-KIDWA, Permanent Observer to the United Nations for Palestine: Since there is international consensus on the applicability of the Fourth Geneva Convention, what could be sought from the International Court of Justice? What kind of Advisory Opinion could be useful? Mr. Shabas indicated that since the Convention has never been litigated in Canada, which has a dualistic English system, it might not be applicable. It would seem more logical that the Court would find the Convention applicable.
Mr. HASSOUNA: One of the paragraphs in the agreement calls on States not to import any products from the settlements. It might be advisable for the Conference to elaborate on that point. People that belong to the settlements should not be offered entry into countries party to the Convention.
Concerning the International Court of Justice and advisory opinions, many international lawyers think that it might be a way to get the highest Court to pronounce itself on the legality of the situation. It might, however, be dangerous, as it could engender doubt about an established legal position. Only Israel refuses that position. There are judges that sometimes like to strike a middle ground and others who are subject to political influence.
Regarding an inquiry commission, an already established committee, the United Nations Special Committee to Investigate Israeli Practices, is denied access into the occupied territories.
Mr. TAVERGNIER: Putting pressure on the European Union is a possible route, but some feel that appealing to the International Court of Justice might be unrealistic. It might be possible to ask for a solemn opinion from a high authority to sanctify or enshrine violations that have occurred. Another possibility is to distinguish between the de jure and de facto application. The Palestine Rights Committee should call another meeting to clarify the distinction.
Mr. SHABAS: The English system of law is no exception as far as dualist systems are concerned. No international treaty has force of law in Canada until implementing legislation has been adopted. Canada and other English law countries follow that system. The Geneva Convention is not self-executing and does not provide for penalties or for an obligation to investigate and prosecute. The Convention will hold a State to its provisions, but is not concerned about how that is achieved -- de jure or de facto.
Mr. MCCOUBREY: England has appended the entire set of Conventions, thus making them into national law. There are indeed risks in raising matters before the International Court of Justice as with any court. The real point of applicability is hardly open to debate. Raising the question is not to establish a new principle, but to ram home a message in an incontrovertible way.
Mr. Al-RASHEDI: The mechanisms that have been referred to in the Convention are sufficient. Resorting to the International Court of Justice would not be appropriate. It is beyond the competence of the Court.