The application of humanitarian law and of human rights law in the
territories under Israeli occupation since 1967 and the interaction
between these categories are frequently on the agenda. Recent
events, of both a political and legal character, have added
immediate relevancy to the theoretical issues. This involves the
basic issue of the legal status of the territories under Israeli
jurisdiction since 1967, as a consequence of belligerent
occupation, and the application of humanitarian law and human
rights law there. Though one may believe that what will prevail in
the end are political considerations, it seems absolutely essential
to clarify the legal aspects, as well.
The Status of the Territories
On July 15, 2003, the Knesset adopted, by a majority of 26 to
eight, a bizarre resolution declaring that the territories of
Judea, Samaria and Gaza - the Golan Heights are not mentioned - are
not "occupied territories," from either an historical viewpoint or
from the angle of international law or political agreements signed
by Israel. The Knesset is, of course, a sovereign body and is
entitled to make statements that may be absolutely baseless in
terms of legality.
This particular statement, made in the absence of the head of
government and at a time when negotiations were being conducted by
Israel in relation to the Road Map, may be meaningless, but it is
part of an overall attempt to introduce more elements of confusion
with regard to the status of the occupied territories. A concurrent
episode is a remark made by the attorney general, addressed to the
prime minister, instructing him not to use the words "occupied
territories" - with all their political and legal meaning and to
replace them with "disputed territories." Attorney General Elyakim
Rubinstein is probably stating a true fact when saying there is a
dispute concerning the territories. There may be such a dispute -
not withstanding the steps taken to solve it. But, even if it
exists, it does not alter the fact that the territories of Judea,
Samaria and Gaza, as well as the Golan, are, from a strictly legal
viewpoint, lands under military, or belligerent, occupation. The
legality of the Israeli presence is the result of applying the
rules of belligerent occupation, the source of every authority in
the territories. As belligerent occupant, Israel has the right to
rule those territories, with the limitations imposed by
humanitarian law, namely the Hague Regulations and the Geneva
Conventions. The Fourth Geneva Convention, ratified, as all the
others, by Israel, lists a detailed number of prohibitions, part of
them overlapping well-established norms constituting part of human
rights law. In the well-known "Affo judgment", the Israeli Supreme
Court reiterated its consistent view that the basic norm concerning
the Israeli authority in the territories is the military
occupation, legitimate as long as the conflict is not settled (42
(2) P.D.48 1988).
To recognize the legitimacy of a military occupation, as the result
of acts of war, does not mean denying that humanitarian law is, or
may be, violated by the occupant. In other words, the legitimate
occupant may act against the rules of international law,
specifically those adopted by the international community to
regulate the occupation and protect the individuals living under
occupation, irrelevant of the causes of the occupation and the
previous status of the territories under occupation.
The occupying army, and the political power behind it, namely the
state to which it belongs, may violate international law in two
ways: a) disregarding the rules established by humanitarian law; or
b) ignoring or violating basic human rights. While some human
rights may not be applicable under military occupation, because of
the recognized needs of the occupant, others, the most fundamental
ones, continue in force. Very recently, before the writing of these
comments, the chairman of the Constitutional Committee of the
Knesset, acknowledging that the Israel Defense Forces is sensitive
to criticism in the area of human rights, declared that he is,
"convinced there is room for improvement with regard to respect for
human rights."1
Applicable Law
From a humanitarian law viewpoint, applicable laws2 are the 1907
Hague Regulations Respecting the Laws and Customs of War on Land,
considered to be customary law that does not require any
legislation in order to be incorporated in the local legal
framework, and the 1949 Fourth Geneva Convention Relative to the
Protection of Civilian Persons in Times of War. Israel has ratified
all the 1949 Geneva Conventions, although not the 1977 Protocols,
and those conventions are binding for Israel vis-a-vis the other
parties to the convention and the international community. There is
a different situation with regard to the internal force of those
conventions, because of the lack of incorporation into municipal
legislation.
The official Israeli position in this regard was first stated in
1971 by the then Attorney General Meir Shamgar, who took the view
that the Fourth Geneva Convention does not apply to what was then
called the "administered territories" because of the character of
those territories. Still, the attorney general announced that the
Israeli government would act, de facto, in accordance with the
humanitarian rules of the Hague Regulations and the convention. The
IDF forces were required to act accordingly.
The Israeli authorities persisted in this view, although with some
variations. In 1979, Israeli Ambassador to the UN Yehuda Z. Blum
argued that Israel cannot be considered an "occupying power" in any
part of the former British Mandate and that Jordan had never been a
"legitimate sovereign" in Judea and Samaria. In 1987, Colonel Yoel
Singer, then head of the international law section of the Military
Advocate General's Corps, wrote to the Red Cross that Israel
prefers, "to leave aside the legal question of the status of these
areas and has decided, since 1967, to act de facto in accordance
with the humanitarian provisions of the convention."
In any case, the Israeli judiciary took the view that the validity
of the acts of the occupying power derives from customary
international law, automatically part of Israeli law. As to the
conventions, to be applicable it is necessary to incorporate them
formally into Israeli law. The Israeli position was not generally
accepted by the international community. Beyond that, Israel was
criticized because of specific measures, such as excessive use of
force, killings, deportations, demolition of houses, and various
steps seen as collective punishment.
One could hope that the divergences regarding the status of the
territories would be overcome as a consequence of the peace
process, in its different stages. While these lines are written, at
the time of the "Road Map" negotiations, it is not easy to foresee
their impact on the legal situation in the territories. In any
case, by treaty law or de facto, the humanitarian law provisions
are supposed to be applied by Israel, as promised.
Human Rights in Occupied Territories
This brings me to the question of general human rights and their
application in territories, also subjected to humanitarian law or
laws of war. The issue was the subject of a workshop on human
rights and humanitarian law, organized in 1997 by the Minerva
Center for Human Rights.3 Jochen Abr. Frowein concludes that human
rights treaties;
"remain generally applicable in situations of armed conflicts. The
'jurisdiction' of states does not end at their borders but also
covers authority exercised in a foreign country, in particular in
cases of belligerent occupation. International humanitarian law
takes precedence over human rights treaties as lex specialis in so
far as it may constitute a special justification in armed conflicts
for interference with rights protected under human rights treaties.
But it does not, generally, rule out the applicability of human
rights treaties in situations of armed conflict. States can only
free themselves from human rights obligations by way of derogation,
which is not possible, however, with regard to a certain core of
rights."4
Article 4 of the Covenant on Civil and Political Rights permits, in
times of public emergency that threaten the life of the nation, to
derogate human rights in some conditions, provided that such
derogation is not inconsistent with other obligations under
international law and does not involve discrimination solely on the
ground of race, color, sex, language, religion or social origin. In
any case, the same article provides a list of rights with regard to
which no derogation is possible. The list does not overlap fully
with the prohibition of acts that violate jus cogens - peremptory
norms of international law. It does include the right to life, the
prohibition of torture or cruel, inhuman or degrading treatment or
punishment, the prohibition of slavery and servitude, the
prohibition of retroactivity in criminal law, the right of everyone
to be recognized everywhere as a person under the law, and freedom
of thought, conscience and religion. It also includes the
prohibition of imprisonment merely on grounds of contractual
obligations.
The existence of some rights that cannot be derogated even in times
of public emergency does not imply that other human rights can be
disregarded or ignored. It means that in some conditions they can
be derogated. Undoubtedly, military occupation can be equated to
public emergency, but it has been argued that human rights only
apply to internal situations and not to international armed
conflicts or military occupation. The modern trend in human rights
law considers, however, that "jurisdiction" should prevail over
"territory," and this is the approach of international bodies in
charge of the application of human rights treaties.5 In practice,
because of its special character, humanitarian law has to prevail
over action based on human rights law. But there is interaction
between both systems.
The Present Situation
It would appear that the attempts to find a solution to the
Israeli-Palestinian conflict, starting in 1967 with Security
Council Resolution 242 attempts that underwent so many changes in
the four decades that elapsed since the beginning of the occupation
- are now in the center of world politics. The Quartet - US,
Russia, the EU and the UN - have elaborated a formula that is
essentially not very different from Resolution 242, the Oslo
Agreements and other junctures in the conflict. It is based on the
end of occupation, the recognition of the security needs of the
parties and, now, on the "vision" of two sovereign states, living
side by side.
Of course, the devil is in the details and the implementation of
the formula proposed by the Quartet, and advocated by US President
George W Bush, is under the heavy weight of many question marks,
some of them presently more problematic than ever. These remarks
are written at a moment when it is difficult, or impossible, to
foresee the future of the Road Map. What is clear is that
occupation must come to an end. As long as this is not the case,
the concurring role of humanitarian law and general human rights
must ensure that the occupation causes a minimum of suffering. No
peace process can succeed while terror, on the one hand, and
violation of both human rights law and humanitarian law, on the
other, jointly preempt the parties and the international community
from achieving the desired results. Obviously, at this stage of
international life, hard political realities seem to prevail over a
candid observance of international law norms. This should not
induce us to forget what the law states.
1 Gideon Alon, Haaretz, August 7, 2003.
2 I have dealt with this issue in my article on "International Law
and the State of Israel", in Introduction to the law of Israel,
edited by Amos Shapira and Keren C.DeWitt-Arar, Kluwer,1995. I
refer there to relevant literature.
3 Papers submitted to the workshop were published in the Israel
Yearbook on Human Rights, Vol. 28 (1998). Of special relevance to
our subject are the articles by Yoram Dinstein on "The
International Legal Status of the West Bank and the Gaza Strip
-1998," and by J .Abr. Frowein on "Belligerent and Non-Belligerent
Occupation."
4 Loc. Cit., p. 16.
5 Cfr., Frowein, loc. Cit.