Human Rights and the Israeli Occupation

When Israel issued its first military order on June 6, 1967, announcing the victorious entry of its army to the area of the West Bank (including East Jerusalem), the brief but belligerent war of 1967, which changed the history of the Middle East forever, had effectively come to an end. Another struggle was just beginning between law and politics. The lines were clearly drawn. On the one side were clear provisions of international law governing a belligerent occupation, on the other, political developments that time and again were based on manifest violations by the Israeli occupier of many of these fundamental rules, thus far with utter impunity.

International humanitarian law (IHL) is binding upon Israel’s occupation of the Occupied Palestinian Territory, including East Jerusalem. The general framework of this corpus of laws governing occupation is provided in The Hague Regulations of 1907¹ and in the Fourth Geneva Convention (1949). The main principles enunciated in these two legal instruments are:

• • The occupying power must respect the laws in force in the country and must not deprive protected persons of their rights by unnecessary and disproportionate changes.²

• • The occupying power must not annex the occupied territory in whole or in part.³ It must protect private and public property and natural resources, with the occupier regarded only as administrator and usufructuary,⁴ nor shall it “deport or transfer parts of its own civilian population into the territory it occupies.”⁵

It is widely accepted that the Hague Regulations are declaratory of general international law. Israel’s own Supreme Court has taken this position.⁶ As to the Fourth Geneva Convention, Israel is a signatory of the Convention but has not ratified it. The position taken by the Israeli government is that, because these two legal instruments of international law have not been incorporated into its domestic law, it is not bound by them. There is good authority, however, that reliance on internal law as justification for failure to comply with an international obligation is unacceptable. The International Court of Justice at the Hague has affirmed of the Hague Regulations and the Geneva Conventions that “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.”⁷

Yet while holding on to the position that it is not legally bound to apply the Fourth Geneva Convention, the Israeli government, as will be shown below, has not rejected it out of hand, declaring that it has decided to act de facto in accordance with its humanitarian provisions. No legal basis exists for drawing a distinction between those rules of the convention that are humanitarian in nature and those that are not; any such distinction between de facto and de jure application of the convention in the Occupied Palestinian Territories must be rejected. The entire Convention is humanitarian in nature. In its meeting of experts on October 27, 1998, the International Committee of the Red Cross expressed its reservations in these terms: “it would be unacceptable to allow . . . a set of parallel rules to be established a sort of sub-category of the law, which might or might not be respected, according to the whims of the party applying it, despite the fact that the States have categorically committed themselves to recognizing legal texts that set out precise rights and obligations” (Sandoz 1998). Clearly the distinction must have been put forward by Israel with a view of strengthening the claim that it was conducting a benevolent occupation in which its military were voluntarily observing humanitarian standards against the occupant.

The implications of the distinction between the de facto and de jure positions that Israel has relied upon has characterized the 40 years of the Israeli occupation of the Palestinian Territories. Throughout these years Israel has continued to attempt to dodge adherence to its legal obligations. At the same time it claimed to be adhering de facto to some of the provisions of the Hague Regulations and the Fourth Geneva Convention, it continued to create facts on the ground...