The Applicability of International Humanitarian Law to the Occupied Palestinian Territories

The Applicability of International Humanitarian Law to the Occupied Palestinian Territories

The Israeli Position

As the Occupying Power in the West Bank and Gaza Strip, Israel’s obligations are set out in the Hague Regulations annexed to the Convention (IV) Respecting the Laws and Customs of War on Land (Hague Regulations), and the Fourth Geneva Convention Concerning the Protection of Civilian Persons in Time of War (Fourth Geneva Convention). However, unlike the Hague Regulations, the applicability of which Israeli authorities have accepted due to their customary nature, Israel contests the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territories (OPT). Although Israel ratified the Geneva Conventions in 1951, Israel refuses to recognise their de jure applicability on the grounds that this would amount to recognising that the West Bank and Gaza Strip were respectively under Jordan and Egypt prior to 1967, an issue which Israel contests. Based on this approach, Israel concluded that the territories could not be considered as the “territory of a High Contracting Party.”

Initially, Israeli authorities had recognised the applicability of the Fourth Geneva Convention to the OPT. In this regard, Article 35 of the Proclamation No. 3, promulgated shortly after the 1967 June War stated that: “the military court…must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the Protection of Civilian Persons in Time of War with respect to judicial procedures. In case of conflict between this Order and the said Convention, the Convention shall prevail.” However, in October 1967, this military proclamation was amended by way of Military Order 144 in order to exclude the reference to the Convention's applicability. Since then, Israel claims that its presence in the OPT is as an administrator, thereby rendering the Israeli authorities completely unaccountable to the Fourth Geneva Convention, and declared that it will only abide by the “humanitarian provisions” of the Convention. Moreover, since the beginning of its occupation of the West Bank and Gaza Strip, Israel’s military authorities have issued over 1,500 military orders to alter pre-existing laws, and to effectively extend military jurisdiction over the OPT.

Israeli claims regarding the non-applicability of the Geneva Conventions increased following the signing of the Oslo Agreements. At that time, a number of Israeli commentators argued that since Israeli military presence in OPT was progressively diminishing (at least insofar as Area A is concerned), and Palestinians were assuming broadened responsibilities and powers with respect to internal affairs, Israel can no longer be considered an Occupying Power with obligations towards the Palestinian Territories and its civilian population.

Although the Israeli High Court of Justice has in the past proclaimed that Israel is holding the Palestinian Territories in belligerent occupation, it continues to endorse the official position of the government against the de jure applicability of the Fourth Geneva Convention. In this respect, it has argued that even though Israel signed and ratified the Convention, it was not bound by it, because it “generates new norms whose application in Israel demands an act of legislation.” In addition, and despite the fact that the court has considered dozens of petitions related to Israeli military practices in the OPT, its rulings continue to choose “deference to the discretion of the military authorities whenever it invoked military considerations.”

The Position of the International Community

Israel remains isolated in this legal interpretation and position. The majority of the international legal community has rejected the Israeli arguments since 1967 outlined above, and has repeatedly reiterated that Israel is an occupying power in the West Bank and Gaza Strip, and cannot evade the obligations it committed to undertake as a High Contracting Party to the Conventions.

Israel has exercised effective control of the OPT since 1967. As Article 42 of the Hague Regulations stipulates, a “territory is considered occupied when it is actually placed under the authority of the hostile army,” and that the occupation extends “to the territory where such authority has been established and can be exercised.” Similarly, in the Hostage Case, the Nuremburg Tribunal held that, “the test for application of the legal regime of occupation is not whether the occupying power fails to exercise effective control over the territory, but whether it has the ability to exercise such power.” This test continues to apply to Israel’s relation vis-à-vis the Wes Bank and Gaza Strip.

Repeated resolutions by the UN General Assembly and Security Council, and statements issued by governments worldwide, have all affirmed the de jure applicability of the Fourth Geneva Convention to the OPT, and have called upon Israel to abide by its obligations as an occupying power. Similarly, on 5 December 2001, the High Contracting Parties to the Fourth Geneva Convention reaffirmed, “the applicability of the Convention to the OPT, including East Jerusalem and reiterate[d] the need for full respect for the provisions of the said Convention in that territory.”

This position was most recently confirmed in July 2004 by the International Court of Justice (ICJ) in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The ICJ referenced the agreements between Israel and the Palestinian Liberation Organisation (PLO) which resulted in the transfer of certain powers and responsibilities to the Palestinian National Authority, emphasising that these events, “have done nothing to alter this situation, [and that] all these territories (including East Jerusalem) remain occupied territories [in which] Israel has continued to have the status of occupying power.” In this regard, the Opinion also states that “civilians who find themselves in whatever way in the hands of the occupying power” must remain protected persons “regardless of changes to the status of the occupied territory.”

After affirming the applicability of the Hague Regulations to the OPT, the ICJ also addressed the applicability of the Fourth Geneva Convention to these territories. For this purpose, and in reference to Israel’s occupation of the West Bank and Gaza Strip in the 1967 June War, it recalled Article 2(1) of the Convention, noting that this convention applies “to all cases of declared war or of any other armed conflict which may arise between two or more High Contracting Parties....” Once these conditions have been met, the ICJ states that the Convention is deemed to apply “in any territory [emphasis added] occupied in the course of the conflict by one of the contracting parties.”