By Syed Qamar Afzal Rizvi.
The issue of Jerusalem is core to the Arab-Israeli conflict since the Israeli takeover of East Jerusalem after the 1967 Six Day War between the Arabs and Israel.
Since his becoming as the US president,Obama has had a fawning desire to resurrect the dead Mideast peace dialogue on the urge and understanding of fostering the two state solution–envisaging ‘East Jerusalem’ as the capital of the would be Palestinian state–advocating West Jerusalem as the ‘would be’ capital of Israel.
This outlook, which the American administration wishes to promote, posts the issue of the sovereignty over Jerusalem as more current than before, in that it does not take into account the Israeli declaration of sovereignty over Jerusalem at large, and turns it into a ‘negotiable issue’.
Undeniably,Obama has also shown his gross disagreement regarding Israeli premier Netanyahu’s policy of the’ Jewish settlements’ in the occupied Palestinian territories. The US supreme court’s latest verdict of not deciding the fate regarding the sovereignty of Jerusalem(but leaving this issue to be decided by America’s president who is final authority in matters of foreign affairs) in favour of the petitioner born in Jerusalem, seeking the legal status of his native city– has largely demystified the ‘Israeli myth’ that Jerusalem belongs to Israel.
The exercise of providing the answer– regarding the question of Jerusalem’s sovereignty-cum-Jewish settlements–cannot be divorced from examining the status of the occupying power(Israel) under‘4th Geneva Conventions and the related ‘international legal regime’.
The Geneva Conventions continue to apply to the Palestinian Territory, including Jerusalem, until the effective end of the occupation. In this respect, Article 6 of the 4th Geneva Convention, which specifies the point at which its application ceases, states that: “In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: I to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143…”
The ICRC (the International Committee of the Red Cross) confirms that: “In cases where a territory is occupied, the application of international humanitarian law, in particular the 4th Convention, ceases only with the effective end of occupation or with a comprehensive political settlement of the dispute, in accordance with the rules of general international law.”Until this occurs, no derogation is possible from the rights guaranteed by the 4th Convention. This was affirmed in Article 7, which states that: “no special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.”
As such, Israel’s claim that application ceases one year after the general close of military operations is also not valid. Israel remains an occupying Power within the Palestinian Territory and is thus bound by the provisions of the Convention. Any claims by the occupying Power with respect to ‘increased’ or ‘broader’ authority in the case of prolonged occupations are also invalid. This argument has been rejected by both the international community and international legal experts and contradicts international law, under which occupation is considered temporary in nature and involves no transfer of sovereignty. The occupation of territory during war does not confer upon the occupying Power ‘state authority’ over the population of the occupied territory or over the occupied territory itself. The rights of the occupant over the territory are merely transitory and are governed by an overriding obligation to respect the existing laws and rules of administration.
With the beginning of the occupation, Israel, the occupying Power, established a military government in the Occupied Palestinian Territory to exert absolute control over the Palestinian population. The two area commanders of the West Bank and Gaza have exclusive formal authority over the area. The commander is the legislator, the head of the Executive, and is in charge of appointing all local officials and judges.
The military commanders have introduced over 1,100 military orders in the West Bank and over 835 in the Gaza Strip. These orders have changed, amended or repealed virtually every law in the Palestinian territory. The occupying Power effected structural changes in the court system and established military tribunals which were responsible for dealing with security related matters, the scope of which has gradually broadened. In November 1981, through a military order, a civilian administration was established for the military government. At the same time, Israel, the occupying Power, has created a dual system of law in the Occupied Territory. Israel has extended some of its laws extraterritorially to the Occupied Territory, applying them only to Jewish settlers and it has established ‘local and regional Jewish councils’.
With the onset of the occupation, Israel, the occupying Power, began to transfer parts of its own population to the Occupied Palestinian Territory, including Jerusalem. These Israelis were settled on illegally acquired Palestinian land in what came to be known as Israeli settlements. Such population transfers are explicitly forbidden under the 4th Geneva Convention specifically to prevent ‘colonization and annexation’.
In the initial stage of this process, Israel claimed that the settlements were being built for security reasons. At a later stage, however, more ideological reasons were given to justify this illegal expansionist policy. To date, Israel has transferred more than 350,000 settlers into the Occupied Palestinian Territory, including an estimated 180,000 who live in nine settlements in the illegally expanded boundaries of ‘East Jerusalem’. The Israeli Government provides considerable financial incentives and other forms of assistance to the settlers to encourage them to move to the Occupied Territory. Most of the settlers are armed and, as evidenced by the many incidents of violence perpetrated by them, have been a real and serious threat to the safety of Palestinian civilians.
The transfer of population, coupled with the illegal acquisition of land, the abuse of natural resources and the establishment of a dual system of law, has created a clear situation of colonization in the Occupied Palestinian Territory.
The occupation is governed by The Hague Regulations of 1907, as well as by the Fourth Geneva Convention of 1949, and the customary laws of ‘belligerent occupation’. Security Council Resolution 1322 (2000), paragraph 3 continued: “Calls upon Israel, the occupying Power, to abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in a Time of War of 12 August 1949;…” Again, the Security Council vote was 14 to 0, becoming obligatory international law.
The Fourth Geneva Convention applies to the West Bank, to the Gaza Strip, and to the entire City of Jerusalem, in order to protect the Palestinians living there. The Palestinian People living in this Palestinian Land are ‘protected persons’ within the meaning of the Fourth Geneva Convention. All of their rights are sacred under international law.
There are 149 substantive articles of the Fourth Geneva Convention that protect the rights of every one of these Palestinians living in occupied Palestine. The Israeli Government is currently violating, and has since 1967 been violating, almost each and every one of these sacred rights of the Palestinian People recognized by the Fourth Geneva Convention. Indeed, violations of the Fourth Geneva Convention are ‘war crimes’.
So this is not ‘asymmetrical situation’. As matters of fact and of law, the gross and repeated violations of Palestinian rights by the Israeli army and Israeli settlers living illegally in occupied Palestine constitute war crimes. Conversely, the Palestinian People are defending themselves and their land and their homes against Israeli war crimes and Israeli war criminals, both military and civilian.
The Israeli High Court took a somewhat different position, recognizing the territories conquered by Israel in 1967 as ‘occupied territories.’ In this respect, the Court recognized the applicability of the Hague Regulations of 1907 as customary international law. However, it largely interpreted the Regulations in a manner that has effectively permitted every action committed by the Israeli military. With regard to the 4th Geneva Convention, the Court refrained from taking a position on the applicability, maintaining instead that the Convention was not justiciable before Israeli municipal courts on the basis that it was not incorporated by the Parliament as ‘domestic law’. Overall, the dominant tendency of the Court has been the non-application of international law and it has often engaged in some forms of ‘legal formalism’ that ultimately diminish the bearing of international law on the actions of the occupying forces.
The veritable truth is that, after the Six Day War (1967), Israel proceeded with the occupation of the remaining Palestinian territories, and it commenced to colonise them, in spite of this action being considered as illegal by the UN and the majority of countries. Some suggested that Israel was only defending herself; for them, the aggression of the Arab countries would have been the cause of the Six Day War and consequently, of the expansion of the State of Israel, but, as outlined by a seasoned international law professor Anthony D’AMATO,“the undeniable fact that the Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International Tribunal at Nuremberg in 1948, has abolished forever the idea of acquisition of territory by military conquest”.
The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law, however Israel maintains that they are consistent with international law because it does not agree that the Fourth Geneva Convention applies to the territories occupied in the 1967 Six-Day War. The United Nations Security Council, the United Nations General Assembly, the Intenrnational Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.
The official Israeli legal argument against the application of Article 2( of the 4th Geneva Convention) to the situation in the West Bank is based on a 1971 interpretation by Israeli Attorney-General, Meir Shamgar. Shamgar believed that the Convention did not pertain to the territories captured by Israel since they had not previously been recognised as part of a sovereign state and could not be considered “the territory of a High Contracting Party.
The Israeli legal argument was dismissed by the International Court of Justice. The Court cited the Geneva Convention’s travaux préparatoires, which recommended that the conventions be applicable to any armed conflict ”whether [it] is or is not recognized as a state of war by the parties and in cases of occupation of territories in the absence of any state of war” as confirmation that the drafters of the article had no intention of restricting the scope of its application.
The war itself is an illegal action; and if self-defence is legitimate, it cannot exceed self-defence as, by doing so, it then becomes a new military aggression, by definition. If self-defence had continued until this military aggression, the occupation of territories during a certain period (the conflict) by no means confers on the attacker the right to retain these territories, nor, a fortiori, to annex them. However, it is also true that the PLO, the only legitimate representative of the Palestinian people, expressed its consent on several occasions in considering the West Bank (including Jerusalem) and Gaza, as the territories forming the objective of their territorial claims, that is, the future Palestinian State; a position that was officially adopted in 1988 by the ‘Declaration of Algiers’.
The majority of UN member states and most international organisations do not recognise Israel’s ‘ownership of East Jerusalem’ which occurred after the 1967 Six-Day War, nor its 1980 Jerusalem Law proclamation, which declared a ‘complete and united’ Jerusalem as the capital of Israel. Many’peace pragmatists’ still believe that a ‘stable and sustainable future’– of the city of Jerusalem East or West– lies in the application of UN’s resolution 181(ii). The Resolution recommends ‘’…..the Special International Regime for the City of Jerusalem administered by the United Nations should come into existence; the City of Jerusalem should preserve the interests of Christian, Jewish, and Muslim faiths’’.
The European Union has stated that Jerusalem’s status is that of ‘corpus separatum’ But the UN’s take on this is that Jerusalem is still the part of Palestine.Both Israel and the Palestinian Authority (PA) claim sovereignty over Jerusalem.Israel demands sovereignty in Jerusalem within the municipal boundaries it has determined.The Palestinian Authority(PA),on its part,claim sovereignty in East Jerusalem,as the capital of the future Palestinian state over the entire area east,north and south of the armistice line of 1949- a judicious and justifiable demand rightly endorsed by the UN’s resolution 181.
“An occupation that has lasted for almost 50 years must end,” Barack Obama’s chief of staff, Denis McDonough, told a conference of liberal activists in Washington. “Israel cannot maintain military control of another people indefinitely,” he added. “Palestinian children deserve the same right to be free in their own land as Israeli children in their land,” he added. “A two-state solution will finally bring Israelis the security and normalcy to which they are entitled, and Palestinians the sovereignty and dignity they deserve.”
The occupying power’s ‘doctrinarianism sponsored by Netanyahu’s brinkmanship’—of deliberately ‘annexing East Jerusalem into the West Jerusalem’ and its forcefully applying policy of occupying the ‘West Bank and the eastern’ Palestinian areas –thereby undermining the scope of the two-state solution via friction between Israeli ‘domestic law and international law regime’—cannot grant Israel the status of a defacto-cum-de jure state manu militari ‘formed and annexed’ by Israel after the 1967 war.
The Hague based International Criminal Court(ICC) has recently initiated an inquiry regarding Israel’s war crimes in ‘Gaza and the West Bank.Since its inception of the operation ‘Cast Lead’ in Gaza(2008-2009),Israel has been intermittently launching the drone strikes in Gaza,causing the death of many ‘innocent civilians’.Similar to dozens of other cases where Israel violated international humanitarian law, these drone attacks failed to verify that the targets were combatants. But as noted by the Human Rights Watch (HRW), “the technological capabilities of drones and drone-launched missiles make the violations even more egregious.”
