by Natan Lerner
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
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.