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From the field

The Occupied Territories and International Law

International law establishes the normative framework binding on Israel in its conduct in the Occupied Territories. The relevant provisions are enshrined in two branches of law: international humanitarian law (IHL) and international human rights law. It was once the agreed convention that the two branches do not apply concurrently, namely that IHL applies during armed conflict and occupation, while human rights law applies during peacetime.

Instead of adopting international law as its moral compass, Israel cynically uses it as a manual for the systematic abuse of human rights.

Over the years, however, legal conventions have undergone changes, and this distinction has been blurred. Current convention holds that human rights law continues to apply during armed conflict and occupation, concurrently with IHL. Since the protection IHL provides civilians and victims of war is more limited than the protection afforded under human rights law, this view significantly broadens protection afforded civilians during armed conflict. In the rare instances when IHL and human rights are not in agreement in a situation of armed conflict, the convention is for the provisions of IHL to takes precedence.

IHL sets out the rules applicable to parties to an armed conflict, seeking to minimize, as much as possible, harm to civilians and combatants who are no longer taking part in the hostilities, such as the wounded and prisoners of war. To this end, the provisions of IHL limit the methods and weapons that may be used. For example, IHL stipulates that only military targets may be attacked (the principle of distinction) and even then, only on condition that the harm to civilians is not expected to outweigh the military advantage anticipated (the principle of proportionality).

IHL also establishes the rules that apply to an occupying power. The rules state that occupation is, by definition, temporary and that the occupier is never the sovereign in the occupied territory. The temporary nature of the occupation gives rise to the restrictions imposed on the occupying power, and most especially to the rule that the occupier may not make permanent changes in the occupied territory, with the exception of changes made for the benefit of the local population or to meet the occupier’s imperative military needs. Among the restrictions set out in this rule is that the occupying power may not change the law that applies in the occupied territory, build permanent settlements there or exploit natural resources. IHL also establishes that the people who lived in the occupied territory prior to the occupation are considered “protected persons” and may not be subjected to collective punishment or violence, their private property may not be confiscated, their dignity may not be violated and they may not be expelled from their homes. 

In addition to these provisions, Israel must also uphold the provisions of international human rights law in its conduct in the Occupied Territories. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, which proclaims that all human beings are born free and equal in dignity and rights, without distinction of any kind. In addition, the Universal Declaration proclaims the right to life, liberty and security of person, and it prohibits slavery, torture and arbitrary arrest. The Declaration also acknowledges the universal right to equality before the law, social security and an adequate standard of living, the right to found a family without any limitation due to race, nationality, or religion, and the right to freedom of thought, conscience and religion.

Over the years, a host of international conventions were developed on the basis of the Declaration, chief among them being the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which were adopted by the UN in 1966. They reiterate that states are obliged to protect the human rights – as detailed in each covenant – of all persons living under their jurisdiction, and also add two collective rights: that all peoples have the right to self-determination and the right to use their natural resources freely, as they see fit. More conventions were to follow, including the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989).

These rules of international law – both IHL and human rights law – are meant to limit states’ discretion as to what they may and may not do, so as to ensure a certain measure of human rights protection. Since states are not inclined to relinquish powers, the rules that were ultimately enshrined in the conventions include caveats and exceptions that may be invoked in certain circumstances enumerated in the convention, which allow – in those circumstances – to violate the very rights protected by the convention. This means that international law is a compromise that only partially protects human rights. Nonetheless, partial protection is better than none at all.

The main drawback of the international justice system is the absence of effective enforcement mechanisms. Not only are the mechanisms that are in place drawn-out and cumbersome, most address individual cases only rather than policy and policy-makers. In addition, political pressure and international power struggles often influence how priorities are set and which cases are selected. Consequently, the extent to which states, including Israel, obey international legal provisions largely depends on their good will and on the international and diplomatic pressure, if any, put on them by other states or international institutions.

Nevertheless, and the limitations of international law notwithstanding, it does establish rules designed to minimize as far as possible human rights abuse by state authorities. Hence its importance. Yet the State of Israel avoids meeting even this bare minimum which it is dutybound to uphold in the Occupied Territories. 

Israel argues it is not bound by international human rights law in the Occupied Territories, as they are not officially sovereign Israeli territory. While it is true that Israel is not the sovereign in the Occupied Territories, this fact does nothing to detract from its duty to uphold the international provisions regarding human rights. International jurists disagree with Israel’s position on the matter, and it has also been repeatedly rejected by the International Court of Justice (ICJ) and all UN committees overseeing the implementation of the various human rights conventions. These international bodies have asserted time and time again that states must uphold human rights provisions wherever they are in effective control.

When it comes to IHL, Israel has invoked various arguments over the years in a bid to avoid upholding its provisions. In the early years of the occupation, the state argued the territories were not at all occupied, as before Israel seized control of them, they had not been recognized as the sovereign territory of any other country. Therefore, goes Israel’s argument, it is exempt from upholding the rules governing occupation. Israel declared that, nonetheless, though not required to do so by law, it would uphold the “humanitarian provisions” of the Fourth Geneva Convention which addresses the protection of civilians. Israel has never stated which provisions it considers humanitarian. 

Regardless, this argument has no basis in IHL, the applicability of which is not predicated on previously recognized sovereignty. Who declared war, who won it or which party is in the right are also irrelevant for this branch of law. All it sets forth is that the country that wields effective control over the  territory must afford  protection to the individuals - defined as “protected persons” - who live in the  area are not its nationals.  

Over the years Israel has also argued that its actions in the Occupied Territories are, in any event, “lawful” and in compliance with the provisions of international law: The building of scores of settlements in the West Bank, and the theft of thousands of hectares of land are lawful because they are pursued under the narrow exception that allows the destruction of private property in case of a “military necessity”; the administrative detention of thousands of Palestinians is lawful because preventing future crimes and security reasons underpinned putting them behind bars; and more than anything – the killing of thousands of Palestinians during the recurrent spells of fighting in the Gaza Strip is lawful because they were always killed in keeping with the fundamental principles of IHL – the principle of distinction and the principle of proportionality. These arguments have nearly always been accepted by Israel’s High Court of Justice. 

The provisions of international law are not mere legal theory. They were formulated in order to provide a modicum of protection even in a state of war or occupation to people who are otherwise defenseless. The various interpretations Israel gives these rules to justify the serious harm it causes the civilian population of the Occupied Territories are completely divorced from this objective, and instead serve the very opposite purpose: to provide a guise of legality for unjustifiable actions and to deny the minimal protection afforded to the defenseless. Given all this, Israel’s interpretation has been rejected by most international law jurists, both in Israel and abroad. While the rules of international law are open to interpretation, as are all legal rules, the reading given by Israel is unreasonable, legally wrong and renders the provisions hollow. 

Instead of adopting international law – both IHL and human rights law – as its moral compass, Israel cynically uses it as a manual for the systematic abuse of human rights. The provisions of international law lie before Supreme Court justices, lawyers of the State Attorney’s Office and officers of the MAG (Military Advocate General) Corps. Yet they all manage to interpret them and work around them with one sole objective of lending a guise of legality to the violation of international law. Israel’s policies throughout the Occupied Territories over the past half a century have been veering farther and farther away from protecting the population to verging on actual neglect. This is not an abstract issue. It has tangible repercussions: dispossession, oppression, abuse and killings are the outcome of a formalistic interpretation of rules designed to prevent exactly that.