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The Applicability of Human Rights Conventions to Israel and to the Occupied Territories*

Published online by Cambridge University Press:  04 July 2014

Eyal Benvenisti
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Extract

The recent ratification of the Convention on the Rights of the Child by the Israeli Government is part of a welcome effort to ratify multilateral conventions dealing with human rights, some of which Israel had signed long ago. In addition to this Convention, the Israeli Government ratified, during the summer of 1991, the 1966 Covenant on Civil and Political Rights, the 1966 Covenant on Economic and Social Rights, the 1979 Convention on the Elimination of Discrimination against Women, and the 1984 Convention Against Torture. On the occasion of the ratification of the Convention on the Rights of the Child, this article discusses the legal implications of the ratification of human rights conventions to the Israeli legal system and to the legal systems in the occupied territories.

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Articles
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Israel Law Review , Volume 26 , Issue 1 , Winter 1992 , pp. 24 - 35
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1992

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References

1 Israel signed the Convention on 3 July 1990 and ratified it on 4 August 1991.

2 Israel signed this Covenant on 19 December 1966; ratified on 18 August 1991 (with a reservation and a derogation). For the text of the derogation see infra n. 26.

3 Israel signed this Convention on 19 December 1966; ratified on 18 August 1991.

4 Israel signed the Convention on 17 July 1980; ratified on 23 July 1991 (with reservations).

5 Israel signed the Convention on 22 October 1986; ratified on 4 August 1991.

6 Lapidoth, , “International Law within the Israel Legal System”, (1990) 24 Is. L. R. 451Google Scholar.

7 Abu Aita et al. v. Commander of the Judea and Samaria Region et al. (1983) 37(ii) P.D. 197, at 238-239; 7 S.J. 1, at 36 (emphasis in original).

8 Subsidiary legislation may not derogate from international custom: The American-European Beth-El Mission v. Minister of Welfare et al. (1967) 21(ii) P.D. 325; (1967) 47 International Law Reports (ILR) 205; Lapidoth, supra n. 6, at 456. This would be the case unless a statute authorized such a derogation.

9 See e.g., Custodian of Absentee Property v. Samra et al. (1956) 10 P.D. 1825, at 1831; (1956) 22 ILR 5; Lapidoth, supra n. 6, at 455.

10 Affu et al. v. Commander of the IDF in the West Bank et al. (1988) 42(ii) P.D. 4; (1990) 29 Int'l Legal Materials 139, at 159.

11 See Lapidoth, supra n. 6, at 479-484; Rubin, B., “The Adoption of International Treaties into Israel Law by the Courts” (1983) 13 Mishpatim 210Google Scholar.

12 The cannon of interpretation that provides that in interpreting a statute it must be assumed, unless the text dictates a different intention, that the legislature did not intend to derogate from the international obligations of the state, including its treaty-based obligations, (see supra n. 8 and accompanying text), attests that such interaction between the government and the legislature exists and is permissible.

13 For an analysis of the policy grounds that prompt this jurisprudence see Benvenisti, E., “Implications of Considerations of Security and Foreign Relations on the Applicability of Treaties in Israeli Law” (1992) 22 Mishpatim 221Google Scholar.

14 Some provisions in human rights conventions reflect customary international law, and are thus applicable in Israeli law independent of their treaty basis. Note, however, that the stringent test put by the Supreme Court for the identification of international custom (supra n. 7), is quite a high hurdle to clear. Cf. Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford, 1989)Google Scholar, who notes that for the purpose of identifying human rights as customary international law, less emphasis should be given to actual state practice: (at 93-100). In light of the International Court of Justice's decision in the merits phase of Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.A. (1986) ICJ Rep. 14), it seems that “the burden of proof to be discharged in establishing custom in the field of human or humanitarian rights is … less onerous than in other fields of international law”. (Meron, id., at 113).

15 See Veerman, P., ed., Israel and the Future United Nations Convention on the Rights of the Child (1989)Google Scholar.

16 See, e.g., art. 44 of the Convention on the Rights of the Child. Israel did not recognize the competence of the Committees established under the Civil and Political Covenant or the Torture Convention.

17 Israel did not formally recognize the status of the West Bank and Gaza as occupied territory, yet it established distinct military administration over these areas, and undertook to respect the “humanitarian provisions” of the 1949 Fourth Geneva Convention: Shamgar, , “The Observance of International Law in the Administered Territories” (1971) 1 Is. Yb. Human Rights 262Google Scholar. Israel did not formally dispute the applicability of the 1907 Hague Regulations (Respecting the Laws and Customs of War on Land) to the territories: Bar-Yaacov, , “The Applicability of the Laws of War to Judea and Samaria (the West Bank) and the Gaza Strip” (1990) 24 Is. L. R. 485Google Scholar. Of course, if the West Bank and Gaza are not occupied territory, there can be no dispute as to the applicability of the conventions to those areas.

18 Annex to the IV Convention Respecting the Laws and Customs of War on Land of 1907.

19 Dinstein, , Military Necessity, in Encyclopedia of Public International Law (1982) vol. 3, p. 274Google Scholar (“The laws of war are all based on a subtle balance between two opposing considerations: military necessity, on the one hand, and humanitarian sentiments, on the other”). For the growing convergence of humanitarian and human rights norms, see Meron, T., Human Rights in Internal Strife: Their International Protection (1987)Google Scholar.

20 See e.g., Dinstein, Y., “Human Rights in Armed Conflict: International Humanitarian Law” in Meron, T., ed., Human Rights in International Law (1985) 346, 350–52Google Scholar (most human rights exist in peacetime but may disappear completely in wartime.); Pictet, J., Humanitarian Law and the Protection of War Victims (1975) 15Google Scholar. The drafting committee of the Fourth Geneva Convention rejected a Mexican proposal to link that Convention with the emerging human rights law. The proposal was to include in the Convention “a wording to the effect that the Occupying Power could only modify the legislation of an occupied territory if the legislation in question violated the principles of the ‘Universal Declaration of the Rights of Man’”. Final Record of the Diplomatic Conference of Geneva of 1949, vol. 2A, at 671Google Scholar.

21 See Quigley, , “The Relation Between Human Rights Law and the Law of Belligerent Occupation: Does an Occupied Population Have a Right to Freedom of Assembly and Expression?” (1989) 12 Boston College Int'l & Comp. L. R. 1Google Scholar; Roberts, , “What is a Military Occupation?” (1985) 55 Brit. Yb. Int'l L. 249, at 250, 287Google Scholar; Id., “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967” (1990) 84 Am. J. Int'l L. 44, at 72.

22 Basic Principles for the Protection of Civilian Population in Armed Conflicts, Resolution 2675(XXV), 25 U.N. GAOR, U.N. Doc. A/8178, Supp. (No. 28), at 76 (December 9, 1970). The first “basic principle” for the protection of civilian population states: “Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict”. The vote was 109 to 0, with 8 abstentions. Specific resolutions with respect to the Israeli occupation have also affirmed the applicability of human rights norms: See e.g., Resolution 2727(XXV) of December 15, 1970, (reprinted in United Nations Yearbook 1970), 526-27, which called upon Israel to comply with the Universal Declaration of Human Rights.

23 Respect for Human Rights in Armed Conflict, Report of the Secretary-General, 24 U.N. GAOR, U.N. Doc. A/7720, Supp. (No. 61), at 12 (Nov. 20, 1969).

24 Goodman, , “The Need for Fundamental Change in the Law of Belligerent Occupation” (1985) 37 Stan. L. R. 1539, at 1600Google Scholar. On the need to revise the laws of war in general in light of the emerging human rights standards see Draper, , “The Relationship between the Human Rights Regime and the Law of Armed Conflict” (1971) 1 Is. Yb. Human Rights 191, at 198Google Scholar.

25 Article 4(1) of the Civil and Political Covenant, Article 15(1) of the European Convention, Article 27 of the American Convention.

26 Israel invoked Article 4(1) of the Civil and Political Covenant with the following declaration: “Since its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens. These have taken the form of threats of war, of actual armed attacks, and campaigns of terrorism resulting in the murder of and injury to human beings. In view of the above, the State of Emergency which was proclaimed in May 1948 has remained in force ever since. This situation constitutes a public emergency within the meaning of Article 4(1) of the Covenant”. Accordingly Israel derogated from its obligations under Article 9 of the Covenant, in so far as the measures it has taken, including measures with respect to arrest and detention, are inconsistent with that Article.

27 The rights to derogate from the European Convention on Human Rights was explored by the European Court for Human Rights. In the case of Lawless v. Ireland (No. 3) (1961) rep. in (1971) 1 European Human Rights Reporter (EHRR) 15, at 31, the Court took the view that “[i]t is for the Court to determine whether the conditions laid down in Article 15(1) … have been fulfilled in the present case”. Similarly, in the case of The Republic of Ireland v. The United Kingdom (1978), rep. in (1979) 2 EHHR 25, at 92, the Court mentioned that states “do not enjoy an unlimited power” to determine the existence of national emergency and to fashion the derogating practices. The European Commission of Human Rights disputed Greece's claim in this respect: Greek case (1969) 12a Yearbook of the European Convention on Human Rights 1, at 100.

28 See Roberts, “Prolonged Occupation”, supra n. 21, at 73. On the relationship between human rights law and the humanitarian laws of war, see Meron, T., “Human Rights in Time of Peace and in Time of Armed Strife: Selected Problems”, in Buergenthal, T., ed., Contemporary Issues in International Law (1984) 1Google Scholar.

29 Political rights are often among the first to be suspended by occupants, and this propensity has not been criticized as unlawful in principle: see, e.g., Schwenk, , “Legislative Power of the Military Occupant under Article 43, Hague Regulations” (1945) 54 Yale L. J. 393, at 403–4CrossRefGoogle Scholar. In the Convention on the Rights of the Child, political rights such as the freedom of expression and the freedom of association may be restricted, inter alia, in the interest of national security (see Arts. 13, 14, 15). On the applicability of this Convention in situations of armed conflict, see also Cohn, , “The Convention on the Rights of the Child: What it Means for Children in War” (1991) 3 Int'l J. Refugee L. 100, at 105–6Google Scholar.

30 “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and civil life, while respecting, unless absolutely prevented, the laws in force in the country”. (On the use of “civil life” instead of the incorrect phrase “safety” see Schwenk, id., at 393).

31 Article 64 states: “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them”.

32 For an analysis of this issue see Benvenisti, E., The International Law of Occupation (Princeton University Press, 1992) (forthcoming)Google Scholar.

33 Compare with the claim that the Allied occupation forces in Axis territories during World War II were “absolutely prevented” from respecting racial laws: McDougal, M. & Feliciano, F., Law and Minimum World Public Order (1961) 770Google Scholar. Israel seems to have accepted this principle, when it decided in 1975 to amend the local law thereby extending suffrage in the municipal elections in the West Bank to women and the poor. On these changes see Drori, , “Second Municipal Elections: Legislative Changes” (1977) 12 Is. L. R. 526CrossRefGoogle Scholar.

34 There have been instances in which representatives of certain states objected to the right of Israel to submit reports on the implementation of conventions in the occupied territories: see Meron, , “Applicability of Multilateral Conventions to Occupied Territories” (1978) 72 Am. J. Int'l L. 542, at 546CrossRefGoogle Scholar (concerning certain ILO Conventions).

35 On the question whether the ousted government may report on the practice of the occupant in the occupied area see Buergenthal, , “Implementing the U.N. Racial Convention” (1977) 12 Texas Int'l L. J. 187Google Scholar; Lerner, , “The Golan Heights Case and the United Nations Committee on Racial Discrimination” (1973) 3 Is. Yb. Human Rights 118Google Scholar; Meron, , “The International Convention on the Elimination of All Forms of Racial Discrimination and the Golan Heights” (1978) 8 Is. Yb. Human Rights 222Google Scholar.

36 It is interesting to note that conventions dealing with economic and social rights, such as the Economic and Social Covenant, or the 1979 Convention on the Elimination of Discrimination against Women, usually remain silent as to their territorial reach. In such a case, the presumption would be that they are binding on each party only within its national territory: Art. 29 of the 1969 Vienna Convention on the Law of Treaties.

37 Buergenthal, T., “To Respect and Ensure: State Obligations and Permissible Derogations”, in Henkin, L., ed., The International Bill of Rights (New York, 1981) 72, at 74Google Scholar.

38 Id., at 77; see also Greenspan, , “The Protection of Human Rights in Time of Warfare” (1971) 1 Is. Yb. Human Rights 228Google Scholar, who argued (with respect to Article 1 of the European Convention) that by referring to “jurisdiction”, the treaty would apply also “to enemy nationals within the [state party's] power, including those in occupied territories”.

39 The sub-committee thereby rejected the previous suggestions to apply the convention on a personal basis, namely on persons “residing in” or “living in” a state party: Council of Europe, Collected Edition of the “Travaux Preparatoires” of the European Convention on Human Rights (1976) vol. 3, p. 200Google Scholar. Mrs. Marta Santos Pais, who participated in the drafting of the Convention on the Rights of the Child, indicated that the drafting committee was moved by the similar aim of extending the territorial scope of the Convention to cover any governmental activity (oral comments at the symposium on the Convention on the Rights of the Child, the Van Leer Jerusalem Institute, 5 November 1991).

40 Applications No. 6780/74 and No. 6950/75, Cyprus v. Turkey (1975) 18 Yb. Europ. Conv. Human Rights 82, at 118. Subsequent affirmations of this principle are found in Application 8007/77, Cyprus v. Turkey (1978) 21 Yb. Europ. Conv. Human Rights 100, at 234, and the decision of the European Committee of Ministers regarding the “events which occurred in Cyprus [which] constituted violations of the Convention”. Resolution DH (79) 1, (1979) 22 Yb. Europ. Conv. Human Rights 440.

41 On two occasions the Israeli High Court of Justice referred to the 1966 Civil and Political Covenant in the context of the territories, without elaborating on the question of their territorial reach: Arjuv et al. v. Commander of IDF in Judea and Samaria et al. (1988) 42(i) P.D. 353, at 363-4; Shahin et al. v. Commander of IDF in Judea and Samaria (1987) 41(i) P.D. 197, at 210-13. In both cases, claims relying on the Covenant were rejected on other grounds.