Why blame John Kerry?

In its campaign against Israel, the ICRC has violated its mandate, distorted the FGC and wreaked much confusion. John Kerry is not its first victim and won’t be its last.

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November 14, 2013 22:19
3 minute read.
John Kerry at Amman press conference

John Kerry 370. (photo credit: Reuters)

 
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US Secretary of State John Kerry’s recent comment that Israeli settlements are “illegitimate” (a form of illegality) is not new; it is the position of the State Department and the international community. Kerry’s remark is based on United Nations General Assembly resolutions, which in turn are based on decisions of the International Committee of the Red Cross, the official “guardian” of the Fourth Geneva Convention (1949) (FGC).

There is, of course, nothing in the convention which mentions Israel, or settlements, but the ICRC decided arbitrarily and unilaterally that the convention, especially Article 49, which discusses the status of territories occupied in a conflict, applies to what they call the “Occupied Palestinian Territory,” Judea, Samaria, Gaza and eastern Jerusalem, or “the West Bank.”

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The ICRC ignores the fundamental question of whether the convention applies at all, since Israel did not conquer areas that legitimately belonged to another country. Egypt and Jordan conquered parts of what was Mandatory Palestine in 1948; their rule was never recognized by the international community and they used these territories to carry out terrorism. Egypt never annexed the Gaza Strip and Jordan relinquished any claims some 30 years ago.

Article 2 of the FGC states: “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”; the PLO/PA/Hamas are not included.

To whom then does this disputed territory belong? Israeli claims rest on international agreements that existed since the First World War, which were incorporated into League of Nations resolutions, the Mandate for Palestine, and the UN Charter (Article 80).

Shortly after the Six Day War (1967), the United Nations Security Council (Resolution 242) demanded that Israel withdraw from (some of the) territories, in return for peace; the word “Palestinian,” does not appear and the Arab world rejected calls for peace.

When several small Jewish communities (“settlements”) were reestablished in areas where Jewish communities had been destroyed, especially in the Old City of Jerusalem, few protested.



At this time, the ICRC decided that Israel had violated the FGC, and that all Jewish presence in areas conquered by the IDF was illegal. Since the archives of the ICRC are closed, there is no way of knowing who made this decision and on what basis. And, since the ICRC’s position is based on the FGC, which is a founding document of the UN, their decisions were adopted by the international community.

The ICRC and UN have not applied the FGC’s Article 49 to any other conflict (e.g. Cyprus, Kashmir, Tibet, Myanmar/Burma, etc.). The ICRC’s exclusive focus on Israel suggests discrimination at least.

According to the ICRC, Israel, as an “occupying power” is prohibited from transferring any part of its own population into the areas which it conquered.

It is forbidden to change “the basic demographic and social configuration of the occupied territory,” in this case, from what it was before 1967.

The “occupying power” could not acquire or use public lands, except for use by the local (Arab) population. “It cannot confiscate land in the occupied territory for the sole purpose of establishing settlements for its nationals.” (ICRC’s “Policy Brief: IHL in Israel and the Occupied Palestinian Territory,” January 2004) OPT has come to mean that all areas conquered by the IDF belongs to “the Palestinian people,” represented by the Palestinian Authority, the PLO, and Hamas and other Islamists.

But, for Arabs, OPT does not only mean areas conquered in 1967, but those from 1949 as well. That explains why the definition of what constitutes “Palestine” is unclear and problematic.

Another meaning of OPT, however, takes a different path: a reference to “Palestine” is not what existed from 1949 to 1967, but what existed before 1948 – as the Mandate for Palestine. In this version, Israel is legitimately occupying part of the “Jewish national home” that was severed when it was invaded and conquered by Arab armies in 1948.

In its campaign against Israel, the ICRC has violated its mandate, distorted the FGC and wreaked much confusion. John Kerry is not its first victim and won’t be its last.

The author is a PhD historian, writer and journalist living in Israel.

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