Is Israel bound by International Humanitarian Law?

1.1. The ICRC issued a press conference in 18.2.2004 in which it expressed it concern for the serious humanitarian and legal problems related to the West Bank Barrier and called upon Israel “not to plan, construct or maintain this barrier within occupied territory” since the “measures taken by the Israeli authorities linked to the construction of the Barrier in occupied territory go far beyond what is permissible for an occupying power under IHL”[1].

1.2. These findings are based on the “ICRC's monitoring of the living conditions of the Palestinian population and on its analysis of the applicable IHL provisions” since: first, “the Palestinian communities situated between the "Green Line" and the Barrier are effectively cut off from the Palestinian society to which they belong”; second, “the construction of the West Bank Barrier continues to give rise to widespread appropriation of Palestinian property and extensive damage to, or destruction of buildings and farmland”[2].

1.3. Israel considered this declaration as a political document since it was issued just few days before the starting of the hearings in the ICJ. In fact, the hearings started on 23.2.2003 with the abstention of Israel, USA and European countries. The ICJ shall give a advisory opinion to the question presented by the United Nations General Assembly (UNGA) about the legal consequences of the wall that Israel is constructing the Occupied Palestinian Territories (OPT), as provided by resolution ES-10/14.

1.4. There are two UNGA resolutions that interest us here: first, the resolution ES-10/13, adopted in 21/10/2003 and asking Israel to stop the building of the wall in the OPT; second, the resolution ES-10/14 adopted in 8/12/2003 in the 23^rd meeting of its 10^th Emergency Special Session. In these two resolutions there is an explicit reference to fourth Geneva Convention of 1949.

1.5. For this reason, we find it opportune to present the IHL and clarify the question of the legal status of the Palestinian Territories in accordance to international law. It will be useful to present briefly the system that Israel adopts to apply international law and try to consider the reasons it give to justify the wall. The last part of the study will try to present an answer to the question that is also the title: Is Israel bound by IHL?

2. Definition of International Humanitarian Law

2.1. Since old history, there was a desire to render war more “human”. The Chinese Sun Zi wrote around 500 B.C. “the Art of War” and recommends to win victory over enemies morally, and to avoid harming civilians and their goods. This book can be considered the most ancient text of what we call today the IHL[3].

2.2. This desire had religious and philosophical origins. Most religions, especially Buddhism, Hebraism, Christianity and Islamism imposed limits to the use of violence during war against certain categories like civilians, childs, women and the elderly. The philosophers started to predicate human dignity and pretended to limit gradually state power also in time of peace. The motivation of that desire and those efforts was: first, to diminish the sufferings of the victims of armed conflicts and the population that fall under an occupying power; second, to control the use of arms; third, diminish the harmful damages of war.

2.3. The flourishing of IHL in its contemporary sense started outside religion and philosophy. It is based on the principle of “Neutrality” since the only thing that it considers is the human suffering, independently of what he was doing before. One of these writings was done by a Swiss businessman, Henry Dunant, who was deeply moved by the devastating effects of the battle of Solfrino (which left 40 thousands killed and wounded) which was at the origin of the creation of the “Red Cross” in 1863 and the beginning of what is called “Geneva Law” in 1864.

2.4. This “Geneva Law” went side by side by the “Hague Law” or the “Law of War” that refers to the declaration of Petersburg in 1868 and the successive agreements and conventions that were aiming in limiting the use of certain kind of arms in conflicts between states.

2.5. The term “International Humanitarian Law” or simply the “Humanitarian Law” was used first in 1945 and found its origins in the Geneva and Hague Laws. It was only in the 1970s that this term was officially used in the two protocols of 1977 that completed the four Geneva conventions of 1949. These new conventions extended the protection to civilians in “internal wars” and not only international ones.

2.6. The difference between Geneva Law and Hague law is mainly in the fact that the first is interested mainly in the protection of civilians and those who are no more able to fight, in any conflict, and is applied on states and on militant groups also; the second intends to limit the use of certain arms that have devastating and harmful damages on the enemies population.

2.7. According to the ICRC, the IHL is “the body of rules which, in wartime, protects people who are not or are no longer participating in the hostilities. Its central purpose is to limit and prevent human suffering in times of armed conflict. The rules are to be observed not only by governments and their armed forces, but also by armed opposition groups and any other parties to a conflict. The four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the principal instruments of humanitarian law”[4].

3. Legal Status of Palestinian Territories

3.1. In a Letter dated 30 September 2003 from the Permanent Observer for Palestine, Mr. Nabil Ramlawi, to the United Nations Office at Geneva addressed to the Chairperson of the Commission on Human Rights, we read: “It is to be recalled that for years Israel has referred to these Occupied Territories as "Territories", without any particular specification, a fact contrary to the reality established in all United Nations Security Council, General Assembly and Commission on Human Rights”. He added that this use “constitutes a new fabricated lie by which Israel tries, as has always been the case, to delude and mislead public opinion, to impose before the international community expressions and facts on the ground which are completely in opposition to reality, in order to evade its responsibility as the occupying Power, on the one hand, and, on the other hand, to deprive the Palestinian people of the right to recover their territories occupied by Israel through war”[5].

3.2. In fact, many UN resolutions confirmed the applicability of Geneva conventions and the two other protocols on the OPT, considering also the final statement of the Meeting of Experts held in Geneva from 27 - 29 October 1998, in order to discus the general problems in implementing the Fourth Geneva Convention.

3.3. This was for example the case of UNGA resolution 58/97 of 17/12/2003 in which the GA “Reaffirms that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967” and “Demands that Israel accept the de jure applicability of the Convention in the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967, and that it comply scrupulously with the provisions of the Convention”.

4. The way Israeli domestic law deals with international law

4.1. According to Dr. Anis Kassim, Israeli Military governor issued Order no. 3 on June 7, 1967, art. 35 in which he stated that “the Military Court… must apply the provisions of the Geneva Conventions dated 12 August, 1949 Relative to the Protection of Civilians in Time of War with respect to judicial procedures. In case of conflict between this Order and said Convention, the Convention shall prevail”. According to the same author, this article was deleted by virtue of Order No. 144 of October 22, 1967. Hence, the population was stripped of the protection of Geneva Convention of 1949[6].

4.2. Following the Common Law tradition, Israeli Courts distinguish between Customary international law, considered part of domestic law -binding without transformation by statute, unless in conflict with existing statute- and Treaty-based law, that have no legal effect as such unless incorporated by statute. As such, the Hague Regulations of 1907 are enforced by the Israeli Supreme Court with respect to governmental action in the occupied territories, whereas the Fourth Geneva Convention of 1949, deemed a constitutive treaty, is not enforced by the Court; in the same time, Israel’s official position was the refusal to apply de iure the Hague Regulations on “territories” of 1967 since the Israeli presence is not an occupation but an administration in absence of sovereignty[7].

4.3. Still, Israeli High Court recognizes the necessity to apply de facto the humanitarian provisions of the 4^th Geneva Convention[8]. The de facto application is different from de iure since there are no possibilities to persecute the government violations of these acts judicially. In fact, the international community through various resolutions and recommendations stressed Israel to recognise the de iure applicability of the IHL on the OPT as it is the case of UNGA resolution 58/97 of 17/12/2003 mentioned before.

4.4. According to Benvenisti, the rationale by the court can be found in the same principle as the separation of powers[9]. The decision of the Supreme Court to invoke the doctrine with respect to the status of the treaties, rather than with respect to the government’s ratification power, is a political decision aimed at granting the government more leeway in the international arena. For the same author, the Supreme Court was quite willing in the early days to embrace international norms by adopting a monist approach to international law. Yet later, security considerations came to the fore, altering the court attitude[10].

4.5. In fact treaties are binding on states that take part; still some treaties and conventions are the codification of CIL that continue to be applicable on all states, including those that that are not part of the convention. In other words, the codification of CIL intends to enhance its application rather than to excuse the states that are not participating from applying them. Still, the problem is how to distinguish between regulations that are part of CIL and convention based regulations. It is of great importance not to leave this task to unilateral decisions of states but to experts in international law.

4.6. Meanwhile, there is a (relatively) new phenomenon that is the codification of international law in multilateral treaties that help to divulgate and to enhance some international laws regulations until the point it becomes considered binding by almost all states, for a period of time, independently from the same treaty; in other words, the codification of International law may include CIL and may create new ones. This is happening with the application of IHL on civilians during armed conflicts, and for this reason, Israel is bound by IHL including the Geneva conventions and its protocols, without renouncing necessarily to its dual system in relation to international law.

5. Any justifications for the Israeli Barrier in the Palestinian Occupied Territories?

5.1. Israel is an occupation power, according to UNGA and UNSC resolutions and practices of states; as such, the IHL is applicable on the Palestinian territories and the Palestinian population. The barrier that Israel is constructing contradicts IHL. The abstention of European countries to vote on UNGA resolution asking the ICJ the advisory opinion is not related to legal motivations but political one since the same countries proposed the other resolution that condemned Israel for the wall and considered these acts as illegal under international law.

5.2. The position of Israel (and the USA) confirms our theory since Israel justifies the wall by saying: “it is necessary to defend our civilians from suicide attacks”. In other words, Israel seems to be saying to the world: Ok, we know the IHL is binding; we know that it is applicable on the OPT; I know that the wall contradict the IHL… still it is necessary for security reasons.

5.3. Here we want to set down three questions and three doubts. Firstly, is it true that the wall will provide security for Israel? (Doubt: Israeli insecurity is related to occupation; Israel will obtain security with the end of occupation rather than continuing it with the construction of the wall). Secondly, presuming that it is necessary for security, why annexing Palestinian lands? (Doubt: if the wall is the best solution, why it does not follow the Green Line!) Thirdly, presuming that the wall, in its actual planning is necessary for security, will this justify violation of IHL? Here we leave the ICRC to express its doubts since it condemned the suicide attacks, in the press release mentioned before, and recognized Israel's right “to take measures to ensure the security of its population. However, these measures must respect the relevant rules of IHL”[11].

6. Is Israel bound by International Humanitarian Law?

6.1. The recognition of Israel or it denial does not effect the legal status of Palestinians and their territories under international law (it is clear that those territories of 1967, including Jerusalem, are occupied territories). Still, this recognition will influence and facilitate the application of the provisions of IHL (customary or conventionally based conventions) on the Palestinian territories. The recognition of a state of its status as occupation power is the first step of the application of the “laws of occupation”, to use the terms of Benvenisti and can be considered a “declaration of good intentions”.

6.2. The recognition of the state to be an occupying power is indispensable in this world order and institutions. In fact, there are no means to apply and render effective the International law. The only possibilities that exist (through the Security Council for example) are determined by the national interests of big powers and relations between states rather than by the interest in the application of international law, resulting in double standards and double measures. This is what explains the great gap existent between what the GA and the SC since the second initiatives can be easily frozen by permanent members veto whenever it considers the resolution “inappropriate”.

6.3. There is a relatively new phenomenon related to the development of IHL and that is the creation of internationally centralised judiciary system for serious international crimes that is the “International Criminal Court” (ICC). Now, since the advisory opinion of the ICJ is not binding on Israel; is it possible to consider seriously the possibility of citing Israel in the ICC?

6.4. According to the statute of the court, the jurisdiction of the court is limited: first, in crimes (only serious violations of International law as provided by the statute); second, in time (crimes committed after 1/7/2002, its jurisdiction is not retroactive); and, third, in states (only states members). Israel did not sign, neither amend, the Rome convention (important remark: the only Arab state that amended the convention is Jordan!) as such the ICC has no jurisdiction over Israel.

6.4. Still, there is only one possibility to cite states that are not members in the treaty that is when the SC refers a case to be considered by the ICC. Since this decision would not be considered procedural, it would need the “non-refusal” of permanent states members and as such will depend on states relations and interests, falling necessarily in double standards and double measures.

6.5. It is not evident how Israel will be obliged to apply the provisions of IHL; still, it is sure that this will not be through actual international institutions. Instead, can we propose alternatives?

6.5.1. Palestinians (and Arabs in general) shall not undermine the role of the Israeli public opinion and its power to practice enormous pressure over its government, in order to apply the IHL and also to end occupation of Palestinian territories. A very important role can be played by the Israeli High Court that may change its passive position with the time.

6.5.2. Besides, it is of extreme importance for Palestinians and Arabs to accentuate on an international and organised “information campaign”, for example through mass media, conferences, and workshops and manifestations… These, and other initiatives, would unmask the real face of occupation and show its practices over civilian Palestinians. This would mean the appreciation of other states populations (the Europeans for example) of legitimate Palestinian aspirations to end occupation and would make pressures over their governments to take different positions.

6.6. In this optic, besides being morally unacceptable although related (I do not say justified, because never justified!) to an occupation that last since 1967, some Palestinian practices (such as suicide attacks) may harm also Palestinian own national interests and have negative effects on the realisation of their legitimate aspirations since they may give the pretext for Israel to justify their inhuman actions towards Palestinian civilians, to the Israeli and international public opinion.

Human Rights Conventions	Signed	Ratified
The 1966 Covenant in Civil and Political Rights	19/12/1966	18/8/1991
The 1979 Covenant on Economic and Social Rights	19/12/1966	18/8/1991
The 1979 Convention on the Elimination of Discrimination Against Women	17/7/1980	23/7/1991
The 1984 Convention against Torture	22/10/1986	4/8/1991
The 1989 Convention on the Rights of the Child	3/7/1990	4/8/1991