Humanitarian law versus political choices

We welcome the opportunity to respond to questions about the application of the Geneva Conventions to Israel’s occupation of the West Bank and east Jerusalem.

By JUAN PEDRO SCHAERER
IDF soldiers at West Bank checkpoint 370 (photo credit: REUTERS/Ammar Awad)
IDF soldiers at West Bank checkpoint 370
(photo credit: REUTERS/Ammar Awad)
On behalf of the International Committee of the Red Cross (ICRC), we wish to respond to an opinion expressed by Moshe Dann, published in The Jerusalem Post on November 14, 2013.We welcome the opportunity to respond to important questions raised about the application of the Geneva Conventions to Israel’s occupation of the West Bank and east Jerusalem, and the settlements therein.
It is not the ICRC, but rather the facts on the ground that determine whether a territory is under occupation. The facts are such that the Israel Defense Forces established their presence in the West Bank and East Jerusalem in June 1967, and exerted their authority there in place of the Jordanian authorities who were no longer able to exert their own authority.
The West Bank and east Jerusalem were “actually placed under the authority” of the IDF in the sense of Article 42 of the Hague Regulations of 1907. In other words, the facts on the ground were such that they fell squarely into the definition of occupied territory, which is codified in Article 42, a provision that also reflects international customary law.
This has not changed in the 45 years that have past since the occupation of the West Bank, including east Jerusalem, was first established. Israel continues to effectively control this territory.
In addition, international humanitarian law does not require that the territory occupied by a foreign army must belong to a sovereign state. The purely factual criterion used is that a territory is considered occupied when it is actually placed under the authority of a hostile army – which is the case in the West Bank and east Jerusalem.
This is why in July 1967 and May 1968, the ICRC already stated that in its opinion, conditions were appropriate for the application of the Geneva Conventions and of the Fourth Convention, in particular, in the occupied Palestinian territory.
Since then the ICRC repeatedly reminded Israel of its obligations under international humanitarian law toward the population living under occupation, through bilateral dialogue.
Regarding settlements, it is long established in international law that settlement activities by an occupying power in an occupied territory are unlawful.
Population transfers for the purpose of establishing settlements are forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory.
This is explicitly addressed in the Fourth Geneva Convention, for good reason. Such transfers are prohibited because they lead precisely to the demographic and other changes in the territory which occupation law was designed to prevent.
Such changes are contrary to the temporary character that an occupation has by definition, and they negate the obligation of an occupant to merely administer the territory, and not to acquire it.
Likewise, there is no room in international law to justify expansions or consolidations of settlements, nor for confiscating land to build and expand settlements.
Thus, when the international community regards the Israeli settlements in the West Bank as unlawful, it does so simply because of that very prohibition, and not because of an opinion of the ICRC.
The ICRC is active in over 90 countries worldwide and has strived for 150 years to work in a neutral and impartial way. The ICRC believes however that a better understanding of international humanitarian law can help to contribute to a deeper respect for humanity in war, and to reduce human suffering caused by conflict and, in this case, prolonged occupation.
In order to promote this understanding, and to address more openly the discrepancies between international humanitarian law and certain policies implemented by Israel in the occupied territories, the ICRC envisages engaging in a series of open forum events in 2014.
We trust that these platforms will provide a welcome opportunity to debate matters of significant humanitarian importance in a way that can include Mr. Dann and engage all of your readers.
The writer is the head of delegation of the International Committee of the Red Cross in Israel and occupied territories.