Israel’s Obligations as an Occupying Power

This is a guest post by Michel Waelbroeck Emeritus Professor of European Law, Université libre de Bruxelles and Emeritus Member of the Institute of International Law, and Willem Aldershoff, Adviser EU-policy Israel/Palestine in Brussels.

Many people seem to be unaware that, as an occupying power, Israel is subject under international humanitarian law to important obligations towards the Palestinian population. These obligations reflect the fact that international law regards occupation as being by essence a temporary phenomenon, so that the occupying power may not bring about irreversible changes to the occupied country’s physical and legal structure, whereas it has the duty to protect the civilian population against undue hardship.

The paper starts out by recalling why what is generally referred to as the Occupied Palestinian Territory (“OPT”) is indeed “occupied territory” within the meaning of international law and why, as a result, the international instruments defining the obligations of an occupying power are binding on Israel in its relations with the Palestinians.

Demostration

Demonstration in Hebron, Palestine, on 20th February 2012 against Israel’s policy of “administrative detention”. (Creative Commons)

Thereafter these obligations will be analyzed, based exclusively on international instruments to which Israel is a party [1] or are accepted by it as part of international customary law. [2] It  shall be explained in what respects Israel’s policies and conduct contravene these obligations. It shall be shown that :

  • the mere fact that Israel continues to occupy the OPT after more than 47 years is in itself a violation of international law;
  • Israel deliberately ignores its basic obligation as an occupying State to exercise its powers for the benefit of the occupied area as required by Article 43 of the Hague Regulations;
  • Israel has brought changes to existing legislation in the OPT in violation of international law ;
  • Israel’s settlement policy has rightly been condemned by the UN’s highest political and judicial authorities as being contrary to Article 49 (6) of the Fourth Geneva Convention;
  • the construction of a separation barrier (“the Wall”) on Palestinian land impedes the exercise of the right to self-determination of the Palestinian population and contravenes several other provisions of international law ;
  • the destruction of real and personal property of Palestinians is prohibited by Article 53 of the Fourth Geneva Convention and several other provisions of international law;
  • the confiscation of private property  belonging to Palestinians is prohibited by Article 46(2) of the Hague Regulations ;
  • the exploitation and destruction of Palestinian natural resources breach Article 55 of the Hague Regulations and the principle of  permanent sovereignty of peoples and nations over their natural resources  ;
  • by condoning settler violence, Israel does not live up to its obligation under Article 43 of the Hague Regulations to ensure public order and safety in the OPT;
  • the appropriation of Palestinian cultural property infringes Article 5(1) of the Hague Convention for the Protection of Cultural Property in the Event of an Armed Conflict of 14 May1964 ;
  • the regime of administrative detention applied by Israel to Palestinian detainees does not comply with the relevant provisions of the Fourth Geneva Convention and of the International Covenant on Civil and Political Rights of 19 December 1966 ;
  • by detaining Palestinians outside Palestinian territory Israel breaches Article 76 of the Fourth Geneva Convention ;
  • by using its control of the crossings between it and the Gaza Strip to impose a practically total closure, Israel imposes on the Gaza population a collective punishment prohibited by Article 50 of the Hague Regulations and Article 33(2) of the Fourth Geneva Convention, in addition to acting in an arbitrary manner not justified by genuine security considerations ;
  • by its prolonged failure to comply with numerous resolutions of the UN Security Council, Israel fails to comply with its obligation under Article 25 of the UN Charter “to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

The above violations shall be shown to constitute “serious breaches of peremptory norms of international law”. As a result, not only Israel but also the other members of the international community – including the EU – are under  a three-pronged obligation:  to cooperate in bringing those breaches to an end ; to refrain from recognizing as lawful the situated created by the breaches ; and to refrain from rendering aid or assistance in maintaining the situation thus created.

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The paper then explains what needs to be done by the EU to comply with this obligation. It will become clear that the purely rhetorical approach followed until recently failed to produce any change in Israel’s attitude and is therefore insufficient. More recently, certain limited, but still insufficient steps have been adopted, such as :

  • the denial of preferential tariff treatment to goods originating in settlements ;
  • the refusal to grant financial assistance under EU programmes to Israeli entities established or active in the settlements (the “grants guidelines”) ;
  • the refusal to accept stamps certifying organic produce from settlements.

The above need to be followed up without delay by additional measures. Some of these are already under preparation :

  • the imposition on EU retailers of an obligation to label settlement products in a clear and visible manner so as to allow consumers to distinguish them from goods made  in Israel proper, as required by EU legislation;
  • a public announcement to inform EU citizens and businesses of the risks of involvement in financial and economic activities in the settlements.

Publication of these measures does not constitute a sanction imposed on Israel but is necessary under existing law for the information of the public ; there is  no reason to make it depend on the outcome of the current negotiations between Israel and Palestine. Also required are a prohibition on importing (and not merely an obligation to label) settlement goods ; an extension of the coverage of the grants guidelines so as to reach all entities, including the EU’s, where the grant of financial assistance would imply recognition of the legality of the occupation of the OPT or the rendering of aid or assistance to the maintenance of that occupation; a prohibition on financial transactions that support settlement activities ; an exclusion of settlement products and companies from public procurement contracts; and withholding the granting of visas to known violent settlers.

As a last resort, if the preceding measures fail to produce the required effect, the EU should resort to the two following measures :

  • suspension of the EU-Israel Association Agreement ;
  • suspension of financial assistance to the Palestinian Authority. Indeed the EU agreed to provide this assistance, which is normally incumbent on Israel as an occupying power, in order to promote the peace process. If it becomes clear that this process is definitively stalled, there is no reason for the EU to continue paying for what is in reality an obligation of Israel.

During the last few weeks, the EU has shown that it was prepared to play a more active role in bringing Israel to agree to a final settlement and put an end to the occupation of Palestine and the ensuing breaches of international law deriving therefrom. On 16 December 2013 the Foreign Affairs Council offered “an unprecedented package of European political, economic and security support to both parties in the context of a final status agreement” and warned “against actions that undermine the negotiations” such as “the expansion of settlements, (…) incitement, incidents of violence in the occupied territory, house demolitions and the deteriorating humanitarian situation in Gaza”, as well as “actions that undermine the status quo of the holy sites, including Jerusalem”.

While this is to be welcomed, it does not detract from the need for the EU to adopt without further delay the measures it is currently considering as well as the further measures recommended above. All these can be taken without endangering Israel’s security ;  there is no need to await the outcome of the negotiations before publishing them.

By adopting a firm position on these issues the EU, as Israel’s largest trading partner and largest contributor to the Palestinian budget, can help in the achievement of a just and balanced solution to the Israel-Palestine dispute, in conformity with its own interests. Otherwise, there is a serious risk that the negotiations may fail, and that the stability of the region will suffer, thus harming not only the Palestinians and Israel but also the EU.

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[1] This includes the Fourth Convention Relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949 (“the Fourth Geneva Convention) ; the International Covenant on Civil and Political Rights of 19 December 1966, and the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954.
[2] This includes the Regulations Respecting the Laws and Customs of War on Land, annexed to the Fourth Convention Respecting the Laws of War on Land, signed in The Hague on 18 October 1907 ( “the Hague Regulations”).
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