Diakonia - People change the world

The applicability of IHL in the Occupied Palestinian Territories

The application of IHL has been clearly and authoritatively established with regard to the oPt, despite the fact that Israel disputes this.

11/13/2013

Importance of IHL in the oPt

As the Occupying Power, Israel is under an obligation according to international humanitarian law to administer the OPT for the benefit of the protected Palestinian population. This includes maintaining law and order, protecting Palestinian civilians from any form of violence, and, crucially, ensuring that their rights and needs are provided for.

Whilst failing to adhere to such obligation  Israel, as the Occupying Power, has extended its powers beyond the remit of international law, resulting in the disenfranchisement of Palestinian communities and individuals. Israel has used its status as Occupying Power to undertake wide-spread expropriation of land and wanton destruction of property; while at the same time claiming adherence to the of rule of law.

Why IHL And the Law of Occupation Applies in the oPt

IHL applies to situations of armed conflict, which includes occupation.

International law provides that a situation of occupation arises when during an international armed conflict a territory, or parts thereof, comes under the effective provisional control of a foreign power[1], even if it is not met with armed resistance. Such criteria has clearly been met in the context of the oPt.

Read more  about occupation 

Complexities and Simplicities in the context of the opt

Several factors make the issues for applicability of IHL more complex, such as:

The take-over of the Palestinian Territory from another Occupying Power (Jordan and Egypt) in 1967;

The illegal annexation of East Jerusalem;

The designation of some authority to the Palestinian Authority under the Oslo Accords;

2005 Gaza "disengagement".

International Consensus

Despite these factual complexities from an international law viewpoint the applicability of IHL and the Geneva Conventions has authoritatively been addressed and assessed by the International Court of Justice (ICJ), the International Committee of the Red Cross (ICRC), the United Nations Security Council (UNSC), and the United Nations General Assembly (UNGA).

Numerous resolutions of the UN Security Council (UNSC 242 and UNSC 338) and the General Assembly consistently repeated the de jure applicability of the Fourth Geneva Convention (GCIV) to the Palestinian Territory and consider the oPt to be under belligerent occupation.

The occupation of the Palestinian territory was clearly and authoritatively affirmed by the International Court of Justice (ICJ) - the leading international judicial body- in its Advisory Opinion on the Wall (2004), noting that this convention applies “to all cases of declared war or of any other armed conflict which may arise between two or more High Contracting Parties....

Once these conditions have been met, the ICJ stated that the GCIV is deemed to apply “in any territory occupied in the course of the conflict by one of the contracting parties.” Hence the argument that the Palestinian Territory do not “belong” to state, can not only be challenged factually, but it is in fact of no pertinent legal relevance to the applicability of the Geneva Conventions.

The Occupation would only be deemed to end based on facts on the ground, namely Israel relinquishing its control over the territory. Domestic politically driven assessments cannot be used to undermine clear objective international rules.

Israel's position: A legal black-hole

Israel's political position is based on the doctrine of the “Missing Reversioner” (or Missing Sovereign)[2], claiming that the provisions of the Fourth Geneva Convention do not apply in the case of Israeli occupation of Palestinian land and people

"The fact that there were no established sovereigns in the West Bank or Gaza Strip prior to the Six Day War means that the territories should not be viewed as "occupied" by Israel. When territory without an established sovereign comes into the possession of a state with a competing claim - particularly during a war of self-defence - that territory can be considered disputed.[3] 

In July 2012, an Israeli judicial panel formed by the Israeli Prime Minister Benjamin Netanyahu and headed by former Israeli Supreme Court justice Edmond Levy upheld this notion.  According to the Levy Committee, the Geneva Conventions only apply to the sovereign territory of a High Contracting Party, and therefore do not apply in this case, since neither Jordan nor Egypt exercised sovereignty over the region in question. The Committee failed to recognize that under customary international law as reflected in Article 42 of the Hague Regulations of 1907, ‘territory is considered occupied when it is actually placed under the authority of the hostile army.

At the same time, in a recent case the Attorney General asserted that activities such as training in the West Bank are perfectly in line with the law of belligerent occupation. However activities which are clearly in violation of the laws of belligerent occupation, such as settlements, are not addressed by the Court. 

In addition to questioning the application of IHL, Israel also asserts that international human rights law does not apply extraterritorially to the West Bank. The result is a unique black hole, whereby a relationship between a State and people under its authority is not regulated by the tenants of international law.

Read more about  the applicability of IHRL in the oPt 

Gaza

The withdrawal of Israeli forces from the Gaza Strip in 2005 raised questions about whether the Gaza Strip remains occupied. According to the test of "effective control", taking into account both military control and control over civilian life, Israel retains through military and administrative measures (including over citizenship and residency (civil registration), air space, sea space maritime spaces and international borders), overall control of the Gaza Strip, which amounts to effective control. These are comparable to Israel ultimate responsibilities in areas fully or partly under the Palestinian Authority in the West Bank. The ICRC, the UN, the US and the EU has have maintained their positions, since, that  the Gaza Strip remains occupied.

 

[1] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, Article 42. 

[2] "The Missing Reversioner: Reflections on the Status of Judea and Samaria", Yehuda Z. Blum,  Israel Law Review (1968).

[3] "Disputed Territories: Forgotten Facts about the West Bank and Gaza Strip", Israel Ministry of Foreign Affairs, (February, 2003)