One could argue that Wednesday’s special conference on the Fourth Geneva Convention is a coup for the Palestinians.
And from a diplomatic perspective, few would debate the point, with Israel lashing out at Switzerland for agreeing to host a conference likely to severely censure Israel regarding the settlements in the West Bank and a variety of issues relating to Gaza.
But the new and pertinent legal question is: How is this conference different legally from all other conferences? One very important difference is that the two prior Geneva conferences censuring Israel, in 1999 and 2001, took place when there was no State of Palestine, and the PLO was a mere observer group in the UN.
Although even now, “Palestine” has not achieved full recognition, as it has not obtained a definitive approval from the UN Security Council, it has obtained recognition from the General Assembly, well over two-thirds of the world’s countries and, in April, became a member of the Fourth Geneva Convention.
Could the expected censure emanating from this conference in which Palestine is, for the first time, a full member, boost future Palestinian legal arguments against the legality of the settlements in a case before the International Criminal Court? The Fourth Geneva Convention, among other things, contains Article 49(6), which, while Israel interprets it differently, most of the world interprets as making the settlements in the West Bank illegal.
But many experts say that the legal value of the conference, even with Palestine being a member for the first time, is still mostly not much more than symbolic, impacting at most non-legal questions of legitimacy.
Experts were mostly unconcerned that this will help the Palestinians overcome other obstacles to bringing Israelis before the ICC and said that, even if the Palestinians overcame the other obstacles, the conference did not really create problems beyond what already existed.
Former IDF international law division head Col. (res.) Liron Libman said that Switzerland itself has dampened expectations and media coverage of the conference, having been pushed into holding it, despite not really wanting to.
Libman stated that legally speaking, Palestine joining the convention mostly creates obligations on the Palestinians more than it empowers them.
The former top IDF officer added that in any event, “the vast majority of the world already says Israel is the occupying power in the West Bank and is under the obligations of the Fourth Geneva Convention,” with many international lawyers even still viewing Gaza as occupied after Israel fully withdrew in 2005.
In other words, the legal situation, from critics’ perspectives, can’t get much worse on the settlements issue, absent Palestine fully joining the Rome Statute and actually filing complaints with the ICC, or UN Security Council full recognition, neither of which is directly connected to the conference.
At most, Libman said that the conference and Palestine being a full member of it for the first time might have limited legal impact as a “soft law” argument, or an argument about a range of international law trends which might show an overall trend.
Even then, Libman said that the International Court of Justice 2004 decision declaring Israel’s West Bank security wall illegal was a far bigger soft law blow, since the ICJ is the UN’s most influential judicial authority.
Hebrew University professor and former Foreign Ministry legal adviser Robbie Sabel essentially concurred, saying that the influential International Committee of the Red Cross has already declared that it considers Israel’s settlements to be violating the Geneva conventions.
He added that legally, “there is no significance at all,” calling the conference a “political statement” causing mostly diplomatic harm.
Sabel acknowledged that in some theoretical potential ICC case, the ICC might cite to statements from the conference censuring Israel for the settlements, but that Israel’s defenses to block the ICC from taking the case and the other side’s accusations would essentially remain unchanged.
He also mentioned the ICJ 2004 decision as having been more significant legally, a decision which has still not yet backed Israel into a corner on the ground.
On a side note, Sabel did discuss a possible impact in a separate unexpected circumstance where there would be an all-out conventional war between Israel and West Bank Palestinian Authority armed forces (as opposed to internal security or as opposed to war with Hamas).
He said that there, Palestine's having joined the convention for the first time could support a claim (though Israel could still dispute it) that any of their soldiers captured by Israel are entitled to full prisoner-of-war status, which they would more definitively not have been entitled to prior to Palestine joining in April.
The ICRC said it is "a neutral observer and has no organizing role in this event.
It added, "the ICRC is designated by the States Party as the guardian of International Humanitarian Law, its role consists only in providing technical legal and humanitarian expertise, but it does not take any positions, nor does it speculate on, the political objectives, declarations, or outcomes of the event."
So while the issue may be a major diplomatic problem, legally, it appears, the picture has not yet changed much.