Human rights law applies, too

We can't have it both ways - using the powers of an occupier without extending rights to the occupied.

By DAVID KRETZMER
tank drives in jenin 298 (photo credit: Ariel Jerozolimski [file])
tank drives in jenin 298
(photo credit: Ariel Jerozolimski [file])
Even after nearly 40 years of occupation, politicians and some lawyers have tried to argue that Israel's status in the West Bank and Gaza (before the disengagement) is an open question. The most glaring example was the reprimand that the previous attorney-general, Elyakim Rubinstein, gave prime minister Ariel Sharon when the latter referred to them as "occupied territories." While the government of Israel did originally challenge application of the law of belligerent occupation, and especially the Fourth Geneva Convention, to the West Bank and Gaza, this challenge never prevented the IDF from using the extensive powers an occupying state enjoys in international law to take measures on grounds of military necessity. Such measures included seizure of private property and restrictions on the liberties of the individual that would be inconceivable in a democratic regime. It was Justice Landau, then president of the Supreme Court, who, in the famous Eilon Moreh case, pointed to the contradiction between the argument that the territories are not occupied and the use by the authorities of the powers of an occupying state in international law. Since then the court has ruled dozens of times that the regime in the territories is one of belligerent occupation. THE LAW of belligerent occupation is part and parcel of the law of armed conflict, generally referred to today as international humanitarian law (IHL). IHL developed in modern times to regulate the conduct of states involved in armed conflicts, and, more specifically, to limit the use of force in such conflicts so as to protect civilians and prevent unnecessary suffering to all. While originally restricted to inter-state conflicts, the 1949 Geneva Conventions extended some of the fundamental norms to apply to armed conflicts occurring in the state's territory between its forces and organized armed groups. Since then the rules applying to non-international armed conflicts have been widened and are in many respects parallel to those applying in international (i.e. inter-state) armed conflicts. Parallel to application of IHL to internal armed conflicts, the post-war period has witnessed, as a response to the horrors of the Holocaust, a dramatic development in international law - the rise of the international law of human rights. This great legal innovation went beyond the regulation of relations between states - the traditional arena of international law - to apply to the relationship between states and individuals subject to their jurisdiction. States may no longer argue that violations of human rights of their own citizens or residents are a domestic affair which is no concern to other states. ONE OF the debated questions in international law today is the relationship between this, relatively new, branch of international law and the traditional law of armed conflict, or IHL. This relationship is the subject of a conference being held at the Hebrew University on May 21 and 22, and sponsored by the Minerva Center for Human Rights, the International Committee of the Red Cross, the Bruce W. Wayne Chair of International Law at the Hebrew University and the Adenauer Foundation. For a long time it was assumed that regimes of armed conflict and human rights were mutually exclusive. True, in many situations the norms of the two systems may be identical. Thus, for example, the prohibition on torture is accepted in both systems. However, the two systems are based on different models of law. IHL is based on group conflict and the rights and vulnerabilities of persons are largely dependent on their group status, rather than their individual actions. Hence, combatants may be the object of an attack; civilians may not. Human rights law, on the other hand, emphasizes on the rights of individuals, irrespective of their group affiliation. Very few rights enjoy absolute protection and most rights may, in certain circumstances, be restricted. However, under a human rights regime such restrictions will generally only be permissible when justified by the acts of the particular individual. Despite the differences, as the application of international human rights norms expanded the notion of mutual exclusivity was abandoned. In recent years it has become widely accepted that human rights law continues to operate in situations of armed conflict, though in some cases the more specific norms of IHL may prevail. Accordingly, it has become accepted that an occupying power is subject not only to the laws of belligerent occupation, but also to its international human rights obligations. This is particularly pertinent in the case of a long-term occupation, such as the occupation of the West Bank. The Israeli authorities are required to respect the rights of Palestinians under human rights conventions to which Israel is a party, subject only to such limitations as can be justified under the conventions themselves. WHILE THE executive has continued to argue that Israel's international human rights obligations do not extend to the occupied territories, in a number of recent cases relating to the separation barrier and detention of Palestinians the Supreme Court has referred to international human rights norms, without ruling whether they formally apply. It is about time that all the authorities accepted application of these norms and started considering their implications vis-a-vis our actions and policies in and toward these territories. The writer is the Bruce W. Wayne Professor of International Law at the Hebrew University of Jerusalem.