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Five years after the ICJ Advisory Opinion: Al-Haq calls for High Contracting Parties to reconvene

Wednesday, 13 October 2010 11:40
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9 JULY 2009
REF.: 31.2009E

 

 Open Letter sent to the High Contracting Parties to the Geneva Conventions on 9 July 2009


Dear High Contracting Party to the Fourth Geneva Convention,

As a Palestinian human rights organisation, Al-Haq takes the occasion of the fifth anniversary of the advisory opinion of International Court of Justice (ICJ) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory to urge you to resume the Conference of High Contracting Parties to the Fourth Geneva Convention.

As you are aware, five years ago today, the highest judicial body in the United Nations system ruled that the Wall being built by Israel in the Occupied Palestinian Territory (OPT), and its associated regime—of Israeli settlements, land confiscation, separate roads, permit systems and movement restrictions—are contrary to international law. On that basis, the Court further ruled that Israel is legally obliged to terminate its breaches of international law, to dismantle the Wall, and to make reparation for all damage caused by its construction; and that all States are under an obligation not to recognise, aid or assist the illegal situation resulting from the construction of the Wall and its associated regime. The Court also specifically asserted that the High Contracting Parties to the Fourth Geneva Convention “are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”

In the five years that have passed since that authoritative ruling was made, Israel has failed to fulfil any of the obligations adjudged by the ICJ to be incumbent on it under international law. Construction of the Wall has continued towards completion, while Israel’s settlement enterprise in the West Bank, held unanimously by the Court to be in violation of the Fourth Geneva Convention, continues to expand at a rate that is three times faster than ‘natural growth’ inside Israel. Despite this persistent and open defiance of the Court‘s elucidation of international law, the High Contracting Parties have as yet failed to fulfil their own legal obligation to ensure Israel‘s respect for the Convention. While Al-Haq is currently engaged in legal action in the jurisdictions of certain High Contracting Parties in an attempt to rectify this failure, a more comprehensive process is required in order to determine in detail the concrete measures to be undertaken by the High Contracting Parties to fulfil their essential legal obligations in this regard. The Conference of High Contracting Parties to the Fourth Geneva Convention is the ideal forum for such a process to be embarked upon.

United Nations General Assembly resolution ES-10/15 of 20 July 2004 invited Switzerland to conduct consultations on the possibility of resuming the Conference in light of the advisory opinion on the Wall. Switzerland reported back to the General Assembly in June 2005 that the consultations undertaken with the High Contracting Parties at the time “produced a virtual consensus on the inadvisability of holding a new conference in the present circumstances.”

Those circumstances included “encouraging political developments in the region … which include the implementation of the disengagement plan from the Gaza Strip and the Northern West Bank [and which will] contribute to relaunching the political process;” as well as Israel’s assurances that the Wall was a “temporary measure” justified on grounds of security, that movement restrictions in the OPT were being eased, and that crossing points between Israel and the West Bank and Gaza Strip would be opened.

Unfortunately, the hope created among the High Contracting Parties by those circumstances has proved to be a mirage. Israel’s unilateral ‘disengagement’ from the Gaza Strip has allowed to the Occupying Power to intensify its measures of collective punishment against Gaza’s civilian population through the blockade of vital fuel, electricity, food and medical supplies; and through regular large-scale military attacks characterised by consistently unlawful resorts to force and disproportionate attacks that result in massive civilian casualties, as well as provoking Palestinian armed groups to respond with unlawful attacks of their own, on a smaller scale. Furthermore, it has transpired that many of the Jewish settlers living in illegal settlements in the Gaza Strip have simply been transferred to other illegal settlements in the West Bank. Israeli Prime Minister Benjamin Netanyahu has made it clear that the settlements in the West Bank, universally acknowledged as a major obstacle to peace, will continue to grow as “normal,” and that “Jerusalem will remain the united capital of Israel.”

The Annapolis process, like the numerous failed diplomatic initiatives before it, led nowhere due to a lack of emphasis on international law as an essential over-arching framework for negotiations. Prime Minister Netanyahu’s statements in unambiguous disregard of international law, and the conditions he has laid out which render the creation of a Palestinian State essentially unfeasible, illustrate that there is presently no meaningful “peace process” that might conceivably be obstructed by a reconvened Conference of High Contracting Parties. Rather, in the absence of any genuine political process, a resumption of the Conference is now imperative in order to establish a framework for international humanitarian law to be upheld, and a just and durable solution to the conflict to be pursued on the basis of apolitical and clearly defined international legal principles.

With regard to the assurances made by Israel following the ICJ advisory opinion and Switzerland’s previous consultations, the portrayal of the Wall as a temporary security measure has been belied by numerous statements from Israeli officials since 2005, including, for instance, then Prime Minister Ehud Olmert’s pronouncement in March 2006 that “the course of the fence—which until now has been a security fence—will be in line with the new course of the permanent border.” The alleged temporary nature of the Wall was predicated on its purported raison d‘être of security, as opposed to territorial annexation. However, despite confirmation given in May 2009 to a Knesset parliamentary committee by Yuval Diskin, head of Israel’s General Security Service, that the Wall is not necessary for Israel’s security, and that there is no security reason to complete it, construction continues in violation of the advisory opinion. Israeli promises in 2005 that movement restrictions on Palestinians would be eased and border crossings opened have been similarly unrealised. United Nations figures for the number of obstacles to Palestinian movement in the West Bank have increased from 376 in August 2005 to 634 in March 2009; access to East Jerusalem and Israel from the rest of the West Bank has become increasingly restricted, and the Gaza Strip’s border crossings have been almost hermetically sealed since 2006.

Israel’s occupation of the OPT does not take place in a legal black hole. The laws of occupation and armed conflict, international human rights law, and principles of public international law governing the use of force and title to territory are implicated. The ICJ advisory opinion on the Wall gave effect to many of those laws, not least the Fourth Geneva Convention. Already grave in 2005 when Switzerland last considered a resumption of the Conference of High Contracting Parties, the human rights situation in the OPT has since gone on to reach an unprecedented nadir, as evidenced through widespread violations of international humanitarian law committed during Israel’s ‘Operation Cast Lead’ in the Gaza Strip in December 2008–January 2009. At the same time, prospects of a resolution of the conflict through political channels appear increasingly distant. In this context, adherence to the rule of law, as an impartial framework on which progress must be built, assumes heightened importance.

It is with a view towards such essential progress and the alleviation of the current dire situation in the OPT that Al-Haq urgently requests that the Conference of High Contracting Parties to the Fourth Geneva Convention be reconvened. We look forward to your response and remain at your disposal for any clarifications or further information that you may require.

Yours sincerely,

Shawan Jabarin
General Director
Al-Haq

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