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The Occupied Palestinian Territory and international humanitarian law: a response to Peter Maurer

Published online by Cambridge University Press:  25 June 2014

Shawan Jabarin
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Extract

In his article ‘Challenges to international humanitarian law: Israel's occupation policy’, the president of the International Committee of the Red Cross (ICRC), Mr Peter Maurer, addresses the challenges that the application of international humanitarian law (IHL) faces in the Middle East in general and in the context of the Israeli–Palestinian conflict in particular. Mr Maurer focuses on three main issues in relation to Israel's military occupation of the Palestinian territory: East Jerusalem, settlements and the Annexation Wall. Furthermore, he touches on the ICRC's confidentiality policy and suggests that the ICRC engage in public dialogue with parties to the conflict, especially when confidential dialogue fails to improve the lives of the affected people.

Type
Opinion Note
Information
International Review of the Red Cross , Volume 95 , Issue 890: Violence against health care Part II: The way forward , June 2013 , pp. 415 - 428
Copyright
Copyright © icrc 2014 

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References

1 See Maurer, Peter, ‘Challenges to international humanitarian law: Israel's occupation policy’, in International Review of the Red Cross, Vol. 94, No. 888, Winter 2012Google Scholar, available at: www.icrc.org/eng/assets/files/review/2013/irrc-888-maurer.pdf (last visited 8 February 2014).

2 For further information on this, see Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, SUNY series in Israeli Studies, University of New York Albany, 2002, pp. 32–33Google Scholar. See also Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territories’, in Harvard International Law Journal, Winter 2003, p. 69.

3 See Israeli High Court of Justice (HCJ) 2056/04, Beit Sourik Village Council v. The Government of Israel et al., 48(5) PD, p. 807, 2004; and HCJ 393/82, Jami'at Ascan et al. v. IDF Commander in Judea and Samaria et al., 37(4) PD, p. 785, 1983.

4 The Military Order Concerning Security Regulations that is annexed to Proclamation No. 3 of 7 June 1967 states, inter alia, that military tribunals would be established by the area commander. Art. 35 of the Order states that ‘the military tribunal and its administration shall apply the provisions of the Fourth Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War in all legal proceedings. And in case of contradiction between the present Order and the Convention, the provisions of the Convention shall prevail.’ Military orders are available in Arabic and Hebrew.

5 D. Kretzmer, above note 2, pp. 32–33.

6 See generally Blum, Yehuda, ‘The missing reversioner: reflections on the status of Judea and Samaria’, in Israel Law Review, Vol. 3, 1968Google Scholar.

7 See generally Shamgar, Meir, ‘Legal concepts and problems of the Israeli military government – the initial stage’, in Shamgar, Meir (ed.), Military Government in the Territories Administered by Israel, 1967–1980: The Legal Aspects, Hebrew University, The Harry Institute for Legislative Research and Comparative Law, Jerusalem, 1982Google Scholar.

8 Ibid. See also Roberts, Adam, ‘Prolonged military occupation: the Israeli-Occupied Territories since 1967’, in American Journal of International Law, Vol. 84, No. 1, 1990, p. 64CrossRefGoogle Scholar.

9 Y. Blum, above note 6.

10 M. Shamgar, above note 7.

11 Baker, Alan, ‘International humanitarian law, ICRC and Israel's status in the Territories’, in International Review of the Red Cross, Vol. 94, No. 888, Winter 2012CrossRefGoogle Scholar, available at: www.icrc.org/eng/assets/files/review/2013/irrc-888-baker.pdf (last visited 10 February 2014).

12 See the text of GA Res. 181, 29 November 1947.

13 A. Roberts, above note 8; Kretzmer, David, ‘The law of belligerent occupation in the Supreme Court of Israel’, in International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, pp. 207–236Google Scholar; Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009Google Scholar.

14 SC Res. 242, 22 November 1967.

15 See e.g. SC Res. 452, 20 July 1979; SC Res. 471, 5 June 1980; SC Res. 681, 20 December 1990; and SC Res. 904, 18 March 1994.

16 International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 101.

17 M. Shamgar, above note 7, p. 32.

18 ‘International jurisprudence, some army manuals, and legal scholarship tend to propose a consistent approach to the notion of effective control based on the ability of the foreign forces to exert authority, in lieu of the territorial sovereign, through their unconsented-to and continued presence in the territory in question’: see Ferraro, Tristan, ‘Determining the beginning and end of occupation under international humanitarian law’, in International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, p. 141.CrossRefGoogle Scholar

19 Halabi, Usama, Israeli Laws and Judicial System as Tools for Accomplishing Political Objectives in Jerusalem – Main Stages in Consolidating Israeli Control over Jerusalem Contrary to International Law, Civic Coalition for Defending Palestinians’ Rights in Jerusalem (CCDPRJ), June 2007Google Scholar, available at: www.civiccoalition-jerusalem.org/system/files/documents/israeli_laws_and_judicial_system_as_tools_for_accomplishing_political_objectives_in_jerusalem_06-2007.pdf (last visited 1 March 2014).

20 Lapidoth, Ruth, ‘Jerusalem – some jurisprudential aspects’, in Catholic University Law Review, Vol. 45, 1995–1996, p. 668Google Scholar.

21 See SC Res. 252, 21 May 1968.

22 See Basic Law: Jerusalem, Capital of Israel. An unofficial translation of the Basic Law is available on the website of the Israeli Knesset, at: www.knesset.gov.il/laws/special/eng/basic10_eng.htm (last visited 19 February 2014).

23 See SC Res. 476, 30 June 1980.

24 Art. 2(4) of the UN Charter provides: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

25 GA Res. 2625 (XXV), 24 October 1970.

26 The article states that ‘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, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory’.

27 Al-Haq has documented many such cases. Affidavits are available at Al-Haq's office.

28 Palestinian inhabitants of Jerusalem are given special ID cards, which allow them to live in the city. They are treated as permanent residents.

29 Information gained through private correspondence with the Jerusalem Legal Aid Center.

30 For further information on the 2003 Nationality and Entry into Israel Law, see the website of the Legal Center for Arab Minority Rights in Israel (Adalah), at: www.adalah.org.

31 See Art. 27 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949.

32 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. IV: Geneva Convention relative the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 1960, p. 202Google Scholar.

33 Ibid.

34 For further information on Israel's apartheid policy and on whether the Palestinians and Israelis form racial groups for the purpose of apartheid definition under international law, see generally Tilley, Virginia (ed.), Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories, Pluto Press, London and New York, 2012Google Scholar.

35 Gazit, Shlomo, Trapped Fools: Thirty Years of Israeli Policy in the Territories, Frank Cass, UK and Portland, OR, 2003, p. 217Google Scholar.

36 See Art. 49, para. 6, of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949.

37 J. Pictet (ed.), above note 32, p. 283.

38 Ibid., pp. 278–280 and 283.

39 Ibid., pp. 278–280.

40 The English translation of the document is available at: www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf (last visited 12 March 2014).

41 Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002), UN Doc A/CONF. 183/9.

42 It should be noted that Israel has not ratified the Rome Statute of the ICC.

43 Under Art. 8(b)(viii) of the Statute, ‘the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’, amounts to a war crime.

44 See Koek, Elisabeth, Water for One People Only: Discriminatory Access and ‘Water-Apartheid’ in the OPT, Al-Haq, 2013Google Scholar.

45 Al-Haq has documented many of these assaults. For some examples see affidavits 9360/2014, 9338/2014, 9355/2014, 9342/2014.

46 ICJ, above note 16, para. 119.

47 Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, UN Doc. A/58/311, 22 August 2003, para. 26. (Editor's note: 100,000 dunums equals 10,000 hectares.)

48 ICJ, above note 16, para. 121.

49 A. Baker, above note 11, p. 1519.

50 P. Maurer, above note 1, p. 1507.

51 Office for the Coordination of Humanitarian Affairs (OCHA), The Humanitarian Impact of the Barrier, July 2013, available at: www.ochaopt.org/documents/ocha_opt_barrier_factsheet_july_2013_english.pdf (last visited 1 March 2014).

52 Ibid.

53 ICJ, Case concerning Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 25 September 1997, ICJ Reports 1997, p. 7, para. 51.

54 Ibid.

55 Above note 16, para. 140.

56 The number of houses demolished under this pretext has decreased noticeably over the past few years. However, the policy is still effective in spite of a recommendation to stop it in 2005 by a military committee headed by Major General Udi Shani as it proved to be ‘counterproductive’. According to Al-Haq, the most recent house demolition under this pretext took place on 5 February 2014 and targeted the house of Mujahed Sawalmeh's family in the Al-Far'ah refugee camp in Tubas. For further information on this, see Al-Haq affidavit 9335/2014. For further information on the recommendation and subsequent calls opposing it, see Amnon Straschnov, ‘Don't destroy terrorists’ homes’, in Haaretz, 6 July 2008, available at: www.haaretz.com/print-edition/opinion/don-t-destroy-terrorists-homes-1.249175 (last visited 17 March 2014).

57 The definition of protected persons within the meaning of the Fourth Geneva Convention is provided in Art. 4 of the Convention.

58 Regarding prolonged occupation in particular, the ICRC believes that occupation law is, on the whole, adequate to meet the challenges of today's occupations. The ICRC recently led a project that produced the report Occupation and Other Forms of Administration of Foreign Territory. The purpose of this initiative, which began in 2007, was to analyse whether and to what extent the rules of occupation law are adequate to deal with the humanitarian and legal challenges arising in contemporary occupations, and whether they might need to be reaffirmed, clarified or developed. The overall picture emanating from the expert consultations was that the law of occupation, because of its inherent flexibility, is sufficiently equipped to provide practical answers to most of the humanitarian and legal challenges arising from contemporary occupations. See Tristan Ferraro, The ICRC Project on Occupation and Other Forms of Administration of Foreign Territory, 2012, p. 2, available at: www.icrc.org/eng/assets/files/review/2012/irrc-885-occupation-report.pdf.