Orient House Supports Reconvening the Meeting of the High Contracting Parties to the Fourth Geneva Convention

The Orient House strongly supports the recent call by the Swiss government to reconvene the meeting of the High Contracting Parties to the Fourth Geneva Convention early December, aimed at redressing Israel’s systematic and persistent violations of the Convention.

The reconvening of this conference is important for the integrity of international humanitarian law. The conference will enable the High Contracting Parties to consider the particular opportunities and problems entailed in implementing the article 1 obligation in the Occupied Palestinian Territories including occupied Jerusalem. The application of the Convention’s provisions, or the rights of the protected population cannot become a matter subject for negotiation nor be dismissed as merely politicisation of the Convention. The non-implementation of the Convention prejudices the outcome of a final settlement, and is directly the cause of the recent tensions in the region. The Convention guarantees a minimum human rights standard, which must be upheld by all parties, including third states, until a final settlement is achieved.

The legal imperative of Article 1

Article 1 of the Fourth Geneva Convention is unambiguously clear in its wording:

“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

The authoritative commentary on the Fourth Geneva Convention by Jean Pictet, states, “…the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Convention are applied universally.” In this regard, Article 1 must be viewed as an integral and indispensable part of the intended system of protection for the occupied civilian population. Due to Israel’s denial of the applicability of the Convention to the Occupied Territories, the Protecting Power mechanism envisaged by the Convention in Articles 9, 11 and 12 is ineffective, as it requires the agreement of both parties to the conflict for its proper implementation. Thus, the obligation to safeguard the provisions of the Convention by other states is the last protective mechanism against the commission of grave breaches by the Occupying Power against a vulnerable civilian population. As widely documented by both local and international organizations, the reckless disregard for human life has formed the core of Israeli violations of the Convention during the current uprising. Hence, to invoke the inter-state obligation of Article 1 as a last remedy for the protection of Palestinian civilians against Israeli unlawful practices is clearly justified.

To ensure that other States abide by the provisions of the Fourth Geneva Convention implies that the character of its obligations is deemed to be erga omnes. This view is underlined by specific provisions of the Draft Convention on State Responsibility prepared by the International Law Commission. In Article 40 Paragraph 2 e iii it categorises, inter alia, the criteria for the meaning of injured state by stipulating that “injured State means if the right infringed by the act of a State arises from a multilateral treaty […], any other State party to the multilateral treaty […], if it is established that the right has been created or is established for the protection of human rights or fundamental freedoms.” Moreover, Paragraph 3 of the aforementioned Article stipulates that “injured State” includes all other States, “if the internationally wrongful act constitutes an international crime”. If, according to Article 19 of the Draft Convention of State Responsibility, “the establishment or maintenance by force of colonial domination” is regarded an international crime entailing a multilateral relationship of responsibility to arrest its continuation, a fortiori the flagrant and widespread violations of international humanitarian law by the Israeli military authorities, such as wilful killings, wilfully causing great suffering or serious injury to body or health or the extensive destruction of property- all of which have been widely documented- undoubtedly meet the criteria for international crimes.

Furthermore, the inherent purpose of Article 1 takes into account the asymmetrical power constellation between the Occupying Power and the occupied civilian population deprived of the right to self-determination or the protection of an ousted sovereign. As the responsibility for protecting the rights of a people who are under alien domination rests with the international community, it can be inferred that a prolonged occupation with an abusive framework depriving the Palestinian people of the most fundamental rights adds further normative strength to Article 1.

The obligation to “ensure respect” is further augmented by reference to relevant rules and principles of international law as well as state practice as indicated by UN resolutions.

The Convention rests on the principle pacta sunt servanda, which finds expression in Article 26 of the Vienna Convention on the Law of Treaties which states that “every treaty in force is binding upon the parties to it and must be performed in good faith.” Good faith requires performing legal duties in fact as well as in law. The conduct of the Occupying Power with regards to the occupied civilian population must be guided by the main purpose of the Fourth Geneva Convention-the protection of civilians in time of war.

Moreover, several United Nations Resolutions have continuously reaffirmed the applicability of the Convention to the Occupied Palestinian Territories with the most recent being Security Council Resolution 1322. In addition, a considerable number of UN General Assembly Resolutions have repeatedly referred to Article 1 of the Fourth Geneva Convention as reflecting an obligation on the High Contracting Powers to bring Israel into compliance with its legal duties enshrined in the Convention.

Given the prolonged nature of the Israeli occupation, as well as the systematic commission of grave breaches, the continuing non-enforcement of Article 1 strikes at the very core of international humanitarian responsibility: to prevent and repress grave violations of international humanitarian law.

It is incumbent on the High Contracting Parties to take enforcement action under Article 1 in order to guarantee that Israeli actions in the Occupied Palestinian Territories are intra legem humanitariam.

Enforcement Measures Available to States

High Contracting Parties can fulfill their obligations to ensure respect in a number of ways. In the absence of a protecting power or a formal substitute proscribed in the Convention, the High Contracting Parties themselves as a collective retain the duty, individually and collectively to ensure that the conduct of the occupying power is kept under review; that violations are detected; and that the well being of the protected population is monitored. As the protecting power prescription is inoperative, and taking into consideration the inability of the ICRC to monitor and investigate violations on behalf of the international community, High Contracting Parties that have Consular representation in East Jerusalem have a clear mandate to undertake monitoring functions in the Occupied Territories. Israel is obliged to permit Consular officials to discharge their duties as monitors and investigators under the ambit of the Convention.

Israel’s refusal to recognise the applicability of the Convention and its failure to implement the protecting power mechanism should not be permitted by the High Contracting Parties to deny the population the protection of the Convention. The law requires Israel, as the occupying power, to permit observation and investigation by the High Contracting Parties or their appointed delegates.

Furthermore, the High Contracting Parties have a duty to investigate violations, which the occupying power itself fails to repress. This stems from two obligations, the article 1 obligation to ensure respect and the article 146 obligation to initiate criminal proceedings against those responsible for grave breaches, which are deemed international crimes, and are subject to international prosecution.

-Another option would be for the stationing of international monitors reporting directly to their respective governments on specific violations of humanitarian law. Any monitoring system must however, have an enforcement mechanism built into the modalities of operation in order to enable High Contracting Parties to speedily repress violations.

-High Contracting Parties could also make use of their multilateral and bilateral treaty arrangements (for example concerning privileged trading access) with Israel to induce the Israeli government to ensure respect.

Recalling the Dublin declaration of 1990 in which the states of the European Union reaffirmed both Israel’s duty to respect and their own duty to ensure respect, al-Haq urges you as a High Contracting Party to take this opportunity to ensure Israel’s respect for the Convention’s provisions thus ensuring the integrity of the law.

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