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UNITED
NATIONS

Distr.
GENERAL
E/CN.4/1016
20 January 1970

ORIGINAL: ENGLISH

COMMISSION ON HUMAN RIGHTS
Twenty-sixth session
Item 5 of the provisional agenda

REPORT OF THE SPECIAL WORKING GROUP OF EXPERTS ESTABLISHED UNDER RESOLUTION 6 (XXV) OF THE COMMISSION ON HUMAN RIGHTS

INTRODUCTION


CHAPTER I. SCOPE OF THE MANDATE OF THE SPECIAL WORKING GROUP OF EXPERTS, IN THE LIGHT OF RESOLUTION 6 (XXV) OF THE COMMISSION ON HUMAN RIGHTS AND OF THE GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR


INTRODUCTION

A. Establishment and terms of reference of the Special Working Group

1. At its 973rd meeting, on 27 February 1968, the Commission on Human Rights adopted resolution 6 (XXIV), which reads as follows:

"The Commission on Human Rights,


2.At its twenty-fifth session the Commission on Human Rights had before it a report (S/CN.4/999) submitted by the Secretary-General in pursuance of paragraph of resolution 6 (XXIV). At its 10l4th meeting, on 4 March 1969, the Commission adopted resolution 6 (XXV), which reads as follows:

"The, Commission on Human Rights,

"Mindful of the principle embodied in the Universal Declaration of Human Rights recognizing the right of everyone to return to his country,

"Recalling Security Council resolution 237 (1967) of 14 June 1967, General Assembly resolutions 2252 (ES-V) of 4 July 1967 and 2341 B (XXII) of 19 December 1967, resolution 6 (XXIV) of the Commission on Human Rights and Economic and Social Council resolution 1336 (XLIV) of 31 May 1968 and General Assembly resolution 2452 ( XXIII ) of 19 December 1968 which called upon the Government of Israel to take effective and immediate steps for the return without delay of those inhabitants who fled the areas since the outbreak of hostilities,

"Further recalling the, telegram dispatched by the Commission on Human Rights on 8 March 1968, calling upon the Government of Israel to desist forthwith from acts of destroying homes of the Arab civilian population in areas occupied by Israel, and to respect human rights and fundamental freedoms,

"Bearing in, mind that Security Council resolution 237 (1967) of l4 June 1967, General Assembly resolution 2252 (SS-V) of 4 July 1967, Economic and Social Council resolution 1336 (XLIV) of 31 May 1968, and resolution 6 (XXIV) of the Commission on Human Rights have called for the application of Geneva Conventions of 12 August 1949 in the territories occupied by Israel,

"Noting that the Security Council has once again expressed its concern for the safety, welfare and security of the inhabitants of the Arab territories under military occupation by Israel and deplored the delay in the implementation of resolution 237 (1967)

"Noting also resolution I on respect for, and implementation of, human rights in occupied territories, adopted by the International Conference on Human Rights on 7 May 1968 (A/CONF.32/41) and General Assembly resolution (XXIII) of 19 December 1968,

"Deeply concerned about the reported continuation of human rights violations as well as violations of the Geneva Conventions of 12 August in the territories occupied by Israel,

"Having received the report of the Secretary-General (E/CN.4/999)

"l. Reaffirms the inalienable right of all the inhabitants who have left since the outbreak of hostilities to return, and calls upon the Government of Israel to immediately implement the United Nations resolutions to this effect

"2. Deplores Israel's continued violations of human rights in the occupied territories, particularly the acts of destroying homes of Arab civilian population, deportation of inhabitants and the resorting to violence against inhabitants expressing their resentment to occupation and calls upon the Government of Israel to put an immediate end to such acts;

"3. Expresses its deep concern on Israel's refusal to abide by the Geneva Convention of 12 August 1949 Relative to the Protection,of Civilian Persons in Time of War, and calls once again upon the Government of Israel fully to respect and apply that Convention;

"4. Decides to establish a special Working Group of Experts composed of the members of the Ad Hoc Working Group of Experts established under Commission resolutions 2 (XXIII) and 2 (XXIV) with the following mandate:

"(a) To investigate allegations, concerning Israel's violations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 19^9, in the territories occupied by Israel as a result of hostilities in the Middle East;

"(b) To receive communications to hear witnesses and to use such modalities of procedure as it may deem necessary;

"(c) To report, with its conclusions and recommendations, to the Commission's twenty-sixth session;

"5. Decides to include the question of human rights in the territories occupied as a result of hostilities in the Middle East as a separate item of priority on the agenda of the Commission's twenty-sixth session."


B. Organization of work

3. On 9 April 1969 the Acting Chairman of the Special Working Group of Expert established by the Commission in resolution 6 (XXV) addressed letters to the Permanent Representatives of Jordan, Israel, Lebanon, Syria and the United Arab Republic to the United Nations, drawing their attention to the mandate which the Commission on Human Rights had entrusted to the Special Working Group and inform them of the Working Group's intention to conduct its investigations during July and August 1969 subject to the concurrence of the Economic and Social Council the other competent organs of the United Nations. The letter further stated:

"At the request of the Working Group I have the honour to express the hope that Your Excellency's Government would extend its co-operation to the Group. In particular, the Working Group would be grateful if Your Excellency's Government could communicate to me by 27 June 1969, if possible, any information relating to matters within the mandate of the Group as set out above, including the names and addresses of persons or organizations residing within the jurisdiction of Your Excellency's Government who might be prepared to furnish such information, either orally or in writing, to the Working Group. The names of such persons or organizations would be kept confidential by the Working Group upon request."

4. Similar letters were addressed to the Permanent Observer of the League of Arab States to the United Nations and to the Commissioner-General of the United Nations Relief and Works Agency.

5. The Permanent Representative of the United Arab Republic replied by a note dated 8 May 1969 which read in part as follows:

"The Permanent Representative of the United Arab Republic wishes to convey to the Ad__Hoc Working Group that the Government of the United Arab Republic is ready to extend its full co-operation to the expert group in order to ensure the fulfilment of its mandate and the prompt implementation of resolution 6 (XXV) of the Commission on Human Rights."

6. The Permanent Representative of the Hashemite Kingdom of Jordan replied I by a letter dated 9 May 1969 which read in part as follows:

"I have the honour... to convey to the Working Group... that the Jordan Government is ready to extend to the Working Group its full co-operation to ensure the prompt fulfilment of the Mandate entrusted to it under resolution 6 (XXV) of the Commission on Human Rights."

7. The Permanent Representative of the Syrian Arab Republic replied by a letter dated 22 May 1969 which read in part as follows:

"I have the honour to inform you that the Government of the Syrian Arab Republic would be more than happy to extend to the Special Working Group established under paragraph 4 of resolution 6 (XXV) of the Commission on Human Rights... its full co-operation for the successful fulfilment of its humanitarian mission in accordance with the terms of the aforementioned resolution. "

8. The Permanent Representative of Lebanon replied by a letter dated 25 June 1969 which read in part as follows:

"I have the honour to inform you that the Lebanese Government welcomes the visit of the Special Working Group of Experts to Lebanon and is prepared to do whatever possible to facilitate its mission. Furthermore, the Government and many directly interested organizations and individuals will be willing to supply the Committee with all the documents and evidence which prove the Israeli violation of human rights in the occupied territories."

9. The Permanent Representative of Israel replied by a note dated 25 June 1969.

which read in part as follows:

"At the time of the adoption of the resolution, the representative of Israel fully explained why the Government of Israel rejected that unbalanced and prejudicial resolution.

"It attempted to prejudge the very conclusions which the so-called . Special Working Group of Experts was to reach.

"It failed to have any regard for the vicious trampling on the human rights of the Jewish Communities in certain Arab countries in the Middle East region.

"It was adopted by the Commission on Human Rights by a vote of 13 in favour and one against, with 16 abstentions and two members absent. All the 13 votes in favour were cast by Member States with a record of anti-Israel votes, and nearly all of them are Arab or pro-Arab States that do not maintain any normal relations with Israel and are consistently hostile to it.

"It is clear that a resolution adopted in these circumstances is a purely propaganda exercise lacking any moral validity; and that it does not represent the views of the responsible and impartial majority of the Commission's members

"It is noted that the Special Working Group of Experts had not been completely or properly constituted when some of its members decided to dispatch the letter of 9 April 1969 to the Government of Israel, which is attached to the Secretary-General's note. It is further noted that the resolution of the Commission on Human Rights setting up the Special Working Group was not subsequently approved as required by various resolutions of the Economic and Social Council, including more particularly resolutions 9 (I) of 21 June 1946 and 136? (XLV) of 2 August 1968.

"In the light of the foregoing, the Government of Israel wishes to inform the Secretary-General that it is unable to consider resolution 6 (XXV) as constituting a basis for co-operation on its part."

10. The Permanent Observer of the League of Arab States replied by letter dated 21 May 1969 which read in part as follows:

"I am pleased to inform you that the League of Arab States welcomes the decision of the said resolution entrusting the Ad_Hoc Group of Experts established under resolutions 2 (XXIII) and 2 (XXIV) of the Commission on Human Rights to investigate allegations concerning Israel's violations of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 April 1949, in the territories occupied by Israel as a result of hostilities in the Middle East,

"The League of Arab States also welcomes the visit of the group to conduct its investigations and will co-operate to the fullest extent.

"I wish also to inform you that your letter was presented to the Permanent Arab Regional Commission of Human Rights, which expressed its readiness to meet with the Ad Hoc Group and render all facilities.

"The League of Arab States is in the process of preparing the requested information relating to matters within the mandate of the group. I shall, in due time, inform you about this matter in full detail."

11. In a further letter, dated 19 June 1969, the Permanent Observer of the League of Arab States stated:

"With reference to your letter dated 9 April 1969, concerning resolution 6 (XXV) of the Commission on Human Rights, entitled Question of human rights in the territories occupied as a result of the hostilities in the Middle East and my reply of 21 May 1969 I wish to bring to your attention and also to the attention of the distinguished members of the Ad Hoc Working Group, the various complaints submitted by Arab Member States concerning Israel's violations of human rights in the occupied territories since its aggression of June 1967. These complaints had been distributed to- the Member States of the United Nations as official records of the Security Council and the General Assembly.

"I think that these complaints are most helpful to the Ad Hoc Working Group in carrying out its mandate entrusted to it by resolution 6 (XXV) of the Commission on Human Rights."

12. The Commissioner-General of UNRWA replied to the letter of the Acting Chairman of the Special Working Group by a letter dated 16 June 1969, which read in part as follows:

"I have given careful consideration to the request made in your letter, in the light of the mandate of UNRWA as determined by the General Assembly. Although I understand and sympathize with your needs and purposes, I feel obliged to advise you that I have serious doubts as to whether the requests contained in your letter fall within the terms of that mandate, or are consistent with the activities as conducted at present by UNRWA, or indeed, whether UNRWA at present would be able to do what you wish done,

"You may be sure that it is with genuine regret that I feel unable for the reasons stated above, to respond favourably to your requests Permit me to suggest that if you and the Special Working Group of Experts should wish to pursue this matter further, you might seek the opinion and guidance of the Secretary-General."

13. The Special Working Group considered these communications, and the organization of its work at a series of eight meetings held in New York during July 1969. It decided to visit Geneva in order to consult with the International Committee of the" Red Cross on the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949. It further decided to visit those States which had indicated their willingness to co-operate with it for the purpose of hearing witnesses and gathering evidence in accordance with its terms of reference. For this purpose, it established the following itinerary: Beirut (10-12 August); Damascus (13-15 August); Amman (15-18 August); Cairo (19-23 August).


C. Documentation

l4. The Special Working Group had before it the documents of the Security Council and the General Assembly containing information relevant to its mandate, as well as an annotated list of such documents prepared by the Secretariat. The Special Working Group also took note of the relevant documents of the Commission on Human Rights and those of the International Conference on Human Rights held in Teheran, from 22 April to 13 May 1968. In addition, it had before it the texts of several proclamations and orders promulgated by the Israeli occupation authorities in the occupied areas (see annexes). The Special Working Group has not been able to obtain the complete collection of these proclamations and orders but it has been able to take into account some of these proclamations and orders that are particularly relevant to its mandate. The Group also had before it the annual reports of the International Committee of the Red Cross for 1967 and 1968, the Topical Red Cross News, a series of bulletins published periodically, and the International Review of the Red Cross, a monthly publication; these are both publications of the International Committee of the Red Cross. The Special Working Group also benefited from the International Committee of the Red Cross reports on visits to certain prisons by delegates of that Committee. These reports were communicated to the Special Working Group by the President of the Jordan National Red Crescent Society and they refer to the prisons of Nablus, Jenin, Jericho, Hebron, Tulkarm and Ramallah in the West Bank, The Secretary-General of the Red Crescent Society of the United Arab Republic also presented the Special Working Group with a report of Dr. Marc Schmid of the International Committee of the Red Cross on the medical and health aspects of the situation in the occupied Gaza and Sinai regions; the report is based on a visit to the areas concerned by Dr. Schmid from 19 November to 12 December 1968. The Special Working Group also received a documentary film entitled "Inside the Occupied Land" submitted as evidence by the League of Arab States.

D. Procedure

15. In accordance with operative paragraph 4 of resolution 6 (XXV), the Special Working Group of Experts established by the Commission on Human Rights is composed of the members of the Ad Hoc Working Group of Experts which had been established under Commission resolutions 2 (XXIII) and 2 (XXIV). The Working Group accordingly is composed of Mr. Ibrahima Boye, Prpcureur general, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Senegal to the United Nations (Senegal); Mr. Felix Ermacora, Professor of Public Law, University of Vienna (Austria); Mr. Branimir Jankovic, Professor of International Law, University of Belgrade (Yugoslavia); Mr. Nagenora N. Jha, First Secretary at the Permanent Mission of India to the United Nations (India); Mr. Luis Marchand Stens, Professor of International Law, Minister at the Embassy of Peru to the United States (Peru); and Mr. Waldo Emerson Waldron-Ramsey, barrister-at-law and economist, Counsellor at the Permanent Mission of the United Republic of Tanzania to the United Nations.

Mr. Boye acted as Chairman of the Special Working Group and Mr. Jankovic as Vice-Chairman. Some of the members of the Special Working Group were unable to attend certain meetings, and therefore the composition of the Working Group varied (see annexes).

l6. Mr. Edward Lawson, Deputy Director of the Division of Human Rights, represented the Secretary-General at the meetings which the Special Working Group held in New York. Mr. Maxime Tardu (Division of Human Rights) was Secretary to the Group during its meetings in New York. Mr. Ilhan Lutem (Division of Human Rights) was Principal Secretary during the Group's meetings in Geneva and in the Middle East, Mr. John Pace (Division of Human Rights) was Assistant Secretary to the Group in New York, Geneva and in the Middle East.

17. The Special Working Group followed the following procedure when hearing witnesses,. The Chairman first read out the mandate of the Group,, Each witness was then asked by the Chairman to give his or her name, age and occupation and was offered the choice of taking an oath or making a declaration. The alternative offered were as follows:

"I swear that I will speak the truth, the whole truth and nothing but the truth",

and

"I solemnly declare on my honour and conscience that I will speak the truth, the whole truth and nothing but the truth."

The Chairman then asked whether the witness wished to make any statement. After the statement, or in the absence of a statement, the members of the Special Working Group put questions to the witness.


E. Conduct of the mission

l8. The Special .Working Group held eleven meetings in New York, one in Geneva, three in Beirut, three in Damascus, six in Amman and five in Cairo. On 13 August, in Syria, the Group visited the Djerammadah Tents and the Doumar Temporary Houses, which house refugees. In Jordan, on 15 August, the members of the Working Group visited the refugee camp at Baqaa.

19. The Special Working Group heard a total of 103 persons. Of these, three we heard in New York, fourteen in Beirut, twenty in Damascus, twenty-six in Amman a thirty-nine in Cairo. Of the witnesses, five testified in closed meeting at the own request. In connexion with the testimony of one witness in Cairo, on 21 August 1969, the Working Group arranged for a medical examination of the witness conducted by a doctor appointed for the purpose. The Group also consulted with representative of the International Committee of the Red Cross, Mr= Claude Pilloud, A list of the witnesses heard by the Group in open meeting and a list of communications appear in the annexes to this report.


CHAPTER I

SCOPE OF THE MANDATE OF THE SPECIAL WORKING GROUP OF EXPERTS IN THE LIGHT OF RESOLUTION 6 (XXV) OF THE COMMISSION ON HUMAN RIGHTS AND OF THE GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR


20. The Special Working Group of Experts has conducted its investigation on the basis of resolution 6 (XXV) of the Commission on Human Rights and the debates which led to the adoption of that resolution.

21. The Group noted that in the course of those debates, the representative of Israel stated:1/

"... that allegation [of the alleged failure by Israel to apply the fourth Geneva Convention of 12 August 1949] could only be based on a fundamental misconception. Under article 9 of that Convention, it was to be applied 'with the co-operation and under the scrutiny of the Protecting Powers', which would have to be appointed by agreement between Israel and the Arab States in question. But the Arab States had obstinately refused to agree with Israel in that matter, because by so doing they would be recognizing the State of Israel, something they were not willing to do. The position was that a humanitarian organization, the International Red Cross, had intervened, but its activities were limited by the fact that it could not undertake the functions of a Protecting Power in. accordance with article 11 of the Convention„ 2/ That view had been confirmed by Mr. Pictet, the Chairman of the International Red Cross Society, in a commentary on the Convention,, Within those limits, Israel had co-operated fully with the Red Cross and continued to do so."

It also noted that the position of the Government of Israel was said by the International Committee of the Red Cross to be as follows:

"Application of the fourth Geneva Convention - Following on persistent ICRC representations to the Israeli authorities stating that the fourth Convention is applicable throughout all the occupied territories, the Government of Israel has declared that it wished to leave open for the time being' the question of the application of the fourth Geneva Convention, preferring to act on an ad hoc basis by granting practical facilities to the ICRC delegates." 3/

22. The note verbale of the Government of Israel dated 25 June 1969 stated:

"At the time of the adoption of the resolution, the representative of Israel fully explained why the Government of Israel rejected that unbalanced and prejudicial resolution.

"It attempted to prejudge the very conclusions which the so-called Special Working Group of Experts was to reach.

"It failed to have any regard for the vicious trampling on the human rights of the Jewish communities in certain Arab countries in the Middle East region.

"It was adopted by the Commission on Human Rights by a vote of 13 in favour and one against, with 16 abstentions and two members absent. All the 13 votes in favour were cast by Member States with a record of anti-Israel votes, and nearly all of them are Arab or pro-Arab States that do not maintain any normal relations with Israel and are consistently hostile to it.

"It is clear that a resolution-adopted in these circumstances is a purely propaganda exercise lacking any moral validity; and that it does not represent the views of the responsible and impartial majority of the Commission's members.

"It is noted that the Special Working Group of Experts had not been completely or properly constituted when some of its members decided to dispatch the letter of 9 April 1969 to the Government of Israel, which is attached to the Secretary-General's note. It is further noted that the resolution of the Commission on Human Rights setting up the Special Working Group was not subsequently approved as required by various resolutions of the Economic and Social Council, including more particularly resolutions 9 (I) of 21 June 1946 and 1367 (XLV) of 2 August 1968.

"In the light of the foregoing, the Government of Israel wishes to inform the Secretary-General that it is unable to consider resolution 6 (XXV) as constituting a basis for co-operation on its part."

The argument advanced by the Government of Israel in the Commission on Human Eights and implied in the reply to the group (quoted above, that a similar investigation into alleged violations of human rights of the Jewish communities in Arab countries ought to be conducted by the Special Working Group, cannot be entertained by this Group, irrespective of whether such a parallel investigation would be justified in fact. The principal reasons against this Israeli argument are as follows: (a) that such an investigation would not fall under any of the provisions of the fourth Geneva Convention, and (b) even if there did exist reciprocal agreement between the parties to the Convention, this investigation could not be carried out by the Special Working Group in view of the precise terms of the mandate set out in resolution 6 (XXV).

23. During the debate in the Commission, most representatives stressed that, in their opinion, the Government of Israel was bound by the Convention and should apply it in the territories occupied as a result of the hostilities of June 1967. It was noted, in particular, that the Government of Israel had ratified the Convention without reservation on 6 July 1951. The Convention had been also ratified without reservation by Jordan, on 29 May 19511 Syria, on 2 November 1953) and the United Arab Republic, on 10 November 1952. It was further mentioned that the conditions under which the Convention was applicable were set forth as follows in article 2 of the Convention:

"(a) all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the State of war is not recognized by one of them"; and

"(b) 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".

The occurrence of an armed conflict in 1967 between Israel, on the one hand, and Jordan, Syria and the United Arab Republic, on the other, as well as the subsequent occupation of certain territories by Israel are known historical facts.

The question whether these occupied areas are territories "of a High Contracting Party" within the meaning of article, 2 of the Convention must be answered by taking into" account the status of the territories in question at the time of the outbreak of hostilities in June 1967. On 4 June 1967 the lines of demarcation between territories under Israeli authority and territories under the authority of Syria, Jordan and the United Arab Republic were defined partly by the international border of the former Mandate of Palestine, partly by the cease-fire line laid down in the Arab-Israeli Armistice Agreements of 1949. There appears to be no question that the territories of Syria and the United Arab Republic now under occupation, outside the international borders of the former Mandate of Palestine, are "territories of a High Contracting Party" in the sense of article 2 of the Convention. Those territories within the borders of the former Mandate of Palestine that are now under occupation, namely the West Bank and the Gaza Strip are also to be considered as "territories of a High Contracting Party" in accordance with article 2 of the Convention„ The borders of these territories were recognized in the Arab-Israeli Agreements of 1949. Since then, Israel, the Kingdom of Jordan and the United Arab Republic have exercised governmental powers in these territories. In addition, at the time of ratification of the Geneva Convention relative to the Treatment of Civilian Persons in Time of War of 12 August 1949, none of the parties concerned made any reservations regarding these territorial limits, thereby tacitly recognizing them. The Special Working Group is of the opinion, therefore, that the areas of the West Bank and Gaza occupied as a result of the hostilities of June 1967 are, as far as the Group's mandate is concerned, "territories of a High Contracting Party",

24. In resolution 6 (XXV), the Commission on Human Rights "expresses its deep concern on Israel's refusal to abide by the Geneva Convention of 12 August 1949

relative to the Protection of Civilian Persons in Time of War, and calls once again upon the Government of Israel to fully respect and apply that Convention", and it requests the Group to investigate "allegations concerning Israel's violations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 in the territories occupied by Israel as a result of hostilities in the Middle East", The Group has conducted its investigation, basin itself on the affirmation, clearly expressed in resolution 6 (XXV), that Israel should apply the Convention in the territories occupied as a result of such hostilities.

In the present chapter, the Group merely wishes (a) to determine the scope of investigation and (b) to stress certain basic provisions of the Convention, articles of the Convention which set forth specific rights of protected persons ill be quoted or summarized in chapter III as appropriate.


A. Scope of the investigation

1. Limitations as regards the rights which should be considered in the investigation

The civilian population of the territories occupied by Israel as a result of hostilities in the Middle East enjoys the human rights provided for in the Charter of the United Nations and the Declaration of Human Rights. The applicability of these norms in the area of conflict in the Middle East is affirmed by the Security Council in resolution 237 (1967) of 14 June 1967, which states that "essential Sand inalienable human rights should be respected even during the vicissitudes of war". Security Council resolution 237 (1967) was welcomed with great satisfaction by the General Assembly in resolution 2252 (ES-V). The Commission on Human Rights in resolution 6 (XXV) recalled both these resolutions in its preambular paragraphs.

27. The civilian population of the territories occupied by Israel as a result of hostilities in the Middle East is also protected by the laws of armed conflict in It general, i.e., the norms laid down in customary international law or in |. international conventions ratified by the parties to the conflict.

28. Sub-paragraph 4 (a) of resolution 6 (XXV) of the Commission on Human Rights limits the scope of the present investigation to "allegations concerning Israel's violations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 1949". Thus, the investigation is concerned with allegations of violations of human rights in general and of those deriving from the laws of armed conflicts only to the extent that such rights are covered by the Geneva Convention relative to the Protection of Civilian Persona in Time of War.

29. The main rights of the civilian population mentioned in the Convention are the following:

(aa) Regulations about the treatment of internees in case of articles 4l, 42, 43, 68 and 78 (article 79 ss=), following the "principles of the standard minimum rules" (separate internment, hygiene accommodations, religious services, canteens, air-raid shelters, food, clothing, medical attention, recreation, working conditions, labour detachment, personal property, discipline regulations, petition system, transfers)„

30. The Special Working Group deems it necessary- to point out that there exists a close connexion between the norms contained in the Geneva Convention relative to the Protection of Civilian Persons in Time of War and other legal norms which are part of the law of armed conflicts„ This connexion is affirmed in article 154 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, which reads:

"In the relations between the Powers who are bound by the Hague Conventions relative to the Laws and Customs of War on Land, whether that of 29 July 1899, or that of 18 October 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations annexed to the above-mentioned Conventions of The Hague." 5/

31. Security Council resolution 237 (1967) refers to both the Geneva Convention relative to the Treatment of Prisoners of War and the Geneva Convention relative to the Protection of Civilian Persons in Time of War. The scope of the present investigation is limited to allegations concerning Israel's violations of the latter Convention.

32. The allegations which prompted the adoption of resolutions 6 (XXIV) and 6 (XXV) of the Commission on Human Rights are found in letters from the Government of Jordan, Syria and the United Arab Republic contained in documents of the Security Council and of the General Assembly. Some of these letters refer to alleged breaches of specific articles of the Convention, whereas others allege situations that fall within the purview of the Convention without referring to specific article. Examples of the first kind of letters appear in documents S/8064 and S/8596. These letters refer to alleged breaches of the following articles of the Convention: article 3 (cruel treatment etc.); articles 3 and (disregard of protection of civilian residents); article 15 (food and supply, not ensured); article 18 (attacking civilian hospitals); article 49 (forcible transfer article 54 (alteration of status of public officials); articles 106, 108 (family relations).

Examples of the second category of letters are to be found in the following documents:

(a) Referring to ill-treatment of civilians:

(i) S/8115, S/8750 from Jordan;

(ii) S/7991, S/8037, S/8077 from Syria;

(iii) S/7988, S/7933, S/8344, S/8373, S/8991 from the United Arab Republic;

(b) Referring to torture and murder:

(i) S/8817, S/8820, S/8929, S/8961 from Jordan;

(ii) S/8873, S/8892 from Syria;

(iii) S/8344, S/8373 from the United Arab Republic;

(c) Referring to looting:

(i) S/8032 from Jordan;

(d) Referring to deportation:

(i) S/8032, S/8290, S/8311, S/8445, S/8932, S/8691, S/8698,

3/8722 from Jordan;

(ii) S/8125, S/8550, S/8643 from Syria; (iii) S/8007, S/8017 from the United Arab Republic;

(iv) S/8127 from the Arab Group of States;

(e) Referring to demolition of houses.and destruction:

(i) S/8004, 3/8117, S/8642, 3/8789, S/8890, S/9212. from Jordan;

(ii) S/8178, S/8857, S/8893, S/8904, S/9042, S/9131, S/9139, S/9150, S/9164, S/9199 from Syria;

(f) Referring to violation of the right to fair trial:

S/8923, S/8930, S/8995, S/9102, S/9162 from Jordan.

33. Most of the allegations contained in these letters do not mention, the names or identity of the persons and places they refer to. However, of the letters that mention such names, those contained in the following documents may be mentioned by way of example:

S/8117 razing the villages Zeita, Beit Nuba, Yalu Imwas in Jordan;

S/8817 - murder of Judge Shawqi A. El-Farra, of Khan Yunis in the Gaza Strip; deportation of Miss Zleikha Shehabi, Dr. Daoud El-Husseini, Mr. Kamal Dagan of Jerusalem, Mr. Yasser Amre of Hebron, Jordan;

S/8820 - torture and intimidation of Mrs. Abla Tahha, Miss Sarah Judah from Jerusalem, Miss Lutfia Ibrahim, West Bank; expulsion of head of families in Jabalia (five names are mentioned);

S/8857 - destruction of the Syrian villages, Souraman, Ahmedyie on 18 September 1968 and 10 October 1968;

S/8932 - names of persons who were expelled without charge or trial on 25 October 1968 and on 30 October 1968;

S/8932 - alleged arrest of Mrs. Zaigah Al Khatib and Mr. Maleha Al-Husseini, Mr. Nazeeh Kurah, Jordan;

S/8961 - As'ad Abdul Rahman, statement on his imprisonment in Israeli-occupied territory and the treatment of Arabs in prisons under the occupation, Jordan;

S/9102 - mass arrests in Jerusalem, Nablus, Al-Khalil, Gaza, Ramallah, Bethlehem, Beir Zeit;

S/9150 - demolition of houses in Abizetun, Tell Essqui, Errazaniye, Khan El-Joukhadar, on 6 April 1969, 7 April 1969 and 8 April 1969;

S/9162 - arrest of the Reverend Elia Khoury, Mr. Nabih Muammer, and their expulsion to the East Bank, Jordan;

S/9197 - arrest of Atta-Maraghi of Silwan Village near Jerusalem, Jordan; S/9199 - demolition of houses in Aache and other nearby places on 27 April 1969, 1 May 1969 and 5 May 1969;

S/9225 - arbitrary imprisonment of Randa Nabulsi, Hiba Nabulsi and Saada Nabulsi, demolition of their houses on 8 April 1969, Jordan.

34 The Government of Israel has replied to some of the allegations contained these letters. In particular, the following documents containing replies may be mentioned:

S/8123 (referring to S/8115) - referring to ill-treatment of civilians;

S/8863 (referring to S/8851) - referring to destruction of villages (Souraman and Ahmediye);

S/8965 (referring to S/8961) - referring to torture;

S/9158 (referring to S/9150) - referring to demolition of houses;

S/9174 (referring to S/9162) - referring to arbitrary arrest of civilians;

S/9208 (referring to S/9197) - referring to violation of human rights of civilians;

S/9230 (referring to S/9225) - referring to arbitrary imprisonment of civilians and demolition of houses.

35. The letters referred to in paragraphs 32, 33 and 34 concern allegations most of which have been brought as evidence before the Group. The letters containing allegations and replies are analysed in chapter III of this report.

2. Limitation of the investigation in time

36. Sub-paragraph 4 (a) of resolution 6 (XXV) refers to "the territories occupied by Israel as a result of the hostilities in the Middle East" without indicating expressly any limitation in time. The Group noted, however, that the preamble the resolution refers only to resolutions adopted after the 1967 conflict and referring to that conflict. On the basis of this consideration and in the light of the debates at the Commission on Human Rights, the Group feels that its mandate should be interpreted as referring only to the territories occupied as a result of the hostilities in the Middle East which took place in 1967.

37. The concept of occupation in the Geneva Convention relative to the Protection of Civilian Persons in Time of War is the same as that mentioned in the Hague I Regulations of 1907. The question of when an occupation of a territory begins is dealt with in article 42 of the Hague Regulations as follows:

"A territory is considered as occupied when it is actually placed under the authority of the hostile army.

"The occupation extends only to the territory where such authority has been established and can be exercised"

38. Both the existence of a formal declaration of occupation and/or of a cease­fire are therefore irrelevant to the question of when a territory is occupied in the sense of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, since this is, in accordance with the Hague Regulations, a question of fact. Hence, an event falls within the purview of the present investigation if (a) it concerns any of the benefits afforded by the fourth Geneva Convention, inasmuch as this protects civilians in occupied territories, (b) it took place after the opening of hostilities in the Middle East on 5 June 1967 and (c) the geographical location where the event took place was under the defacto authority of the Israel Defence Forces.

3. Geographical scope of the investigation

39. The Special Working Group considers that sub-paragraph 4 (a) of resolution 6 (XXV) refers only to the territories which came under de facto control of the State of Israel subsequent to the opening of hostilities on 5 June 1967. The limits of these territories are, on one side, the lines which on 4 June 1967 separated territories under Israeli control from territories under the control of Jordan, Syria and the United Arab Republic and, on the other side, the cease-fire lines established between Israel on the one hand and Jordan, Syria and the United Arab Republic on the other, in accordance with Security Council resolution 233 (1967) of 6 June 1967.6/

40. Article 49 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War prohibits individual or mass forcible transfers, as well as deportations of protected persons from occupied territories to the territory of the occupying Power, regardless of the reasons for such transfers or deportation. Thus, persons domiciled or residing in the territories occupied by Israel after 5 June 1967 who have been forcibly transferred or deported to the territory which was under Israeli control prior to that date would be covered by the present investigation.

4. Protected persons

41. Article 4 of the Convention defines the term "protected persons" as follows:

"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:

"Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

"The provisions of Part II are, however, wider in application, as defined in article 13

"Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 or, by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention."

The persons covered by the present investigation are therefore those who found themselves in the territories occupied by Israel after 5 June 1967 (as mentioned under sub-section 3 above), provided they are not nationals of Israel, nationals of States not bound by the Convention or nationals of neutral or co-belligerent States which have normal diplomatic relations with Israel.

As was noted earlier, persons who have been forcibly transferred or deported from the occupied territories to Israel after 5 June 1967 are also covered by the investigation, in accordance with article 49 of the Convention.


B. Some basic provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War

1. The inalienability of the rights of civilian persons under the Convention

44. The rights provided for in the Convention may not be derogated from, except in view of military necessity or for reasons of security, in accordance with detailed provisions of the Conventions These provisions are, in particular: article 5; article 16 (obligations of States Parties as regards wounded and sick persons); article 53 (prohibition of the destruction of property); article 55 (verification by the Protecting Power of the amount of food and medical supplies in occupied territories); article 57 (requisition of civilian hospitals); article 63 (relief work of National Red Cross Societies and other relief organizations); article 64 (penal legislation); article 108 (relief shipments to civilian internees); article 111 (special means of transmitting mail and relief shipments to civilian internees); article 111 (facilities to be granted to relief societies); and article 142 (visits of protected persons by representatives of the Protecting Power and of the International Committee of the Red Cross).

45. Article 8 of the Convention provides:

"Protected persons may in no circumstances renounce in part or in entirety rights secured to them by the present Convention, and by the special agreements referred to in the foregoing article, if such there be."

The special agreements mentioned in article 7 may regulate in detail various matters, but they may in no way adversely affect the situation of protected persons or restrict their rights (article 7, paragraph 1).

46. In accordance with article 47 of the Convention,

"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, not by any agreement concluded between the authorities of the occupied territories and the Occupying. Power, not by any annexation by the latter of the whole or part of the occupied territory."

3. Responsibility for the treatment of protected persons and penal sanctions

48. The question of responsibility for the treatment of protected persons is regulated, inter alia, in article 29 of the Convention. This article reads:

49. Article l46 states' that the High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing any of the "grave breaches" of the Convention defined in article 147. Article 147 reads as follows:

"Grave breaches to which the preceding article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

In accordance with article l48, "no High Contracting Party shall be allowed to absolve itself or any other High Contracting Party in respect of breaches referred to in the preceding article".

4. Rights of the occupying Power

50. The Geneva Convention provides minimum standards for the protection of protected persons in the case of conflict or occupation. In article 1 of the Convention "the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances". The provisions set forth in the Convention may therefore in principle not be derogated from. However, concessions to requirements of State security and military necessity are made in several of the provisions of the Convention. In particular, the following provisions may be mentioned: articles 5, 19, 23, 27, 4l, 49, 51, 53, 64, 68 and 78.

51. These articles concern the following subject-matter:

(a) General provision governing derogations (article 5);

(b) Discontinuance of the protection of hospitals (article 19);

(c) Free passage can be restricted (article 23);

(d) In respect of the general rule about the treatment there is the exception that "the parties to the conflict may take such measures of control and security" (article 27);

(e) A partial or total evacuation of a given area is allowed (article 49) In this and other contexts assigned residence and internment are allowed (article 4l);

(f) A certain degree of compelled labour is permitted (article 51);

(g) The destruction of property is allowed where "such destruction is rendered absolutely necessary by military operations" (article 53);

(h) Special penal provisions may be promulgated by an occupying Power (article 68);

(i) Under article 78, internment and assigned residence are permitted as security measures.

52. The extent to which considerations of military necessity may justify derogations from the rights of the civilian population in time of peace is exhaustively regulated in the Convention, and considerations for military necessity and State security may not justify any further derogations from any provision of the Convention. Therefore the derogation clauses should be interpreted restrictively, as is shown in particular by the third paragraph of article 5 of the Convention. Article 5 reads as follows:

53. Articles 146 and 147 of the Convention cannot be interpreted as sanctioning further restrictions of the Convention; they indicate, on the contrary, that persons responsible for any of the grave breaches of the Convention should be subject to effective penal sanctions. Article 147 provides that acts which are justified by military necessity" do not constitute "grave breaches" of the Convention. However, this provision cannot be interpreted as allowing for interrogations additional to those mentioned in paragraphs 50 and 51 above.

Notes

1/ E/CN.4/SR.1012, 28 February 1969.

2/ Article 11, para. 2, of the Convention provides: "When persons protected by the present Convention do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for, in the first paragraph above, the Detaining Power shall request a neutral State, or,such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict."

3/ International Review of the Red Cross, No. 95 (February 1969), p. 88; communicated by Mr. Pilloud, a Director of the International committee of the Red Cross, at the twelfth meeting of the Group, Geneva, 8 August 1969.

4/ See for instance, E/CN.4/SR.1010, pp. 4-5; E/CN.4/SR.1011, pp. 5 and 9; E/CN.4/SR.1013, pp. 7 and 9; E/CN.4/SR.1014, p.6.

5/ The provisions of the Hague Conventions are binding on the parties to the conflict in the Middle 'East, inasmuch as these are part of customary international law. See Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Cmd. 6964, p. 65: "by 1939 these rules laid down in the [Hague] Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war."

6/ The acceptance of the cease-fire call of the Security Council in resolution 233 (1967) was communicated as follows:


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