Thursday, November 21, 2013

  • Thursday, November 21, 2013
  • Elder of Ziyon
Juan Pedro Schaerer, "head of delegation of the International Committee of the Red Cross in Israel and occupied territories," writes in the Jerusalem Post:

It is not the ICRC, but rather the facts on the ground that determine whether a territory is under occupation. The facts are such that the Israel Defense Forces established their presence in the West Bank and East Jerusalem in June 1967, and exerted their authority there in place of the Jordanian authorities who were no longer able to exert their own authority.

The West Bank and east Jerusalem were “actually placed under the authority” of the IDF in the sense of Article 42 of the Hague Regulations of 1907. In other words, the facts on the ground were such that they fell squarely into the definition of occupied territory, which is codified in Article 42, a provision that also reflects international customary law.

This has not changed in the 45 years that have past since the occupation of the West Bank, including east Jerusalem, was first established. Israel continues to effectively control this territory.

In addition, international humanitarian law does not require that the territory occupied by a foreign army must belong to a sovereign state. The purely factual criterion used is that a territory is considered occupied when it is actually placed under the authority of a hostile army – which is the case in the West Bank and east Jerusalem.
Since at this point Schaerer is only quoting the Hague Regulations, perhaps he should look at the title of the section that Article 42 falls under on the ICRC website:
While this isn't proof positive that the Hague Regulations do not apply to non-state entities, it is also proof that Schaerer's blanket statement is not as clear cut as he pretends. He gives no source for his assertion, and based on primary sources, his statement is only that - an assertion.

The Geneva Conventions shed no additional light on this question, so as far as actual texts of international humanitarian law are concerned, Schaerer's statement is not supported at all.

The ICRC can interpret all it wants, but its interpretation is only that. To characterize it as definitive is deceptive, and that is what is happening here.

Regarding settlements, it is long established in international law that settlement activities by an occupying power in an occupied territory are unlawful.

Population transfers for the purpose of establishing settlements are forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory.

This is explicitly addressed in the Fourth Geneva Convention, for good reason. Such transfers are prohibited because they lead precisely to the demographic and other changes in the territory which occupation law was designed to prevent.
This is a flat-out lie.

I have many times dissected the text of Article 49 of the Geneva Conventions, and I have even dug up the travaux préparatoires that show that when the article was drafted not a word is said about transfer that is voluntary or even encouraged.

Indeed, international law writings, when discussing transfer of populations, are very careful to distinguish between voluntary and involuntary transfer.

Some transfers are said to be voluntary but are in fact involuntary. An example Egypt's expulsion of British subjects in November 1956. Egypt force them to sign an Arabic document where they stated that they were leaving of their own free will and relinquish any claims against Egypt. That is a case of involuntary transfer because the transferees were not given a choice.

The definition of voluntary transfer is very simple: "For the transfer to comply with human rights standards as developed, prospective transferees must have an option to remain in their homes if they prefer."

Nothing in any international law source insists that a nation forcibly stop its citizens from voluntarily moving, but that is apparently how Schaerer is purposefully misinterpreting Geneva.

Moreover, Schaerer characterizes the primary purpose of Article 49 as to "demographic and other changes in the territory which occupation law was designed to prevent." This is also a lie. All of the discussions recorded in the travaux préparatoires center on forced population transfer because of the obvious human rights issues that deportation and forced transfer entails, of forcibly uprooting people from their homes. Nobody said a word about demographic changes being an issue at least in that paragraph.

Thus, when the international community regards the Israeli settlements in the West Bank as unlawful, it does so simply because of that very prohibition, and not because of an opinion of the ICRC.
As I have shown, the source texts do not support Schaerer's interpretation. The ICRC might have some support for its position, but some legal scholars have proof for the opposite. That is why it is clearly, by definition, the ICRC's opinion.

This article proves the opposite of Schaerer's intention. By simply looking up the sources, we see that the ICRC is creating its own interpretation of international humanitarian law specifically to target Israel.

UPDATE: A lengthy comment at the JPost site is worth reading in full: (h/t Ian)

Mr. Schaerer's OpEd raises more questions than it provides answers. For starters, the most obvious one is why is the ICRC so inconsistent in applying the same rules to so many similar situations? To wit, if "It is not the ICRC, but rather the facts on the ground that determine whether a territory is under occupation." as he claims, how come the ICRC didn't apply the same criteria when Jordan illegally occupied and annexed the West Bank and Egypt did the same with Gaza in 1948? Similarly, how come the ICRC has never said a word regarding the (exceedingly brutal) invasion, occupation and annexation of Tibet by China in 1950 (which is still ongoing)? And what about Northern Cyprus, still illegally occupied by Turkey since 1974, and Morocco still illegally occupying the Western Sahara since 1975? Oh, I also forgot two provinces of Georgia still illegally occupied by Russia since 2008? In all these cases, the facts on the ground certainly proves beyond the shadow of a doubt that the territories in question are under occupation. Additionally, all these territories were acquired through wars of aggression, making them illegal, whereas Israel's occupation of the West Bank was the result of a defensive war, which makes it lawful. And yet it is on Israel that the ICRC keeps picking mercilessly, the only case of lawful occupation, while ignoring all the illegal ones! Could it be that the ICRC is scared to offend the culprits in all these other cases, whereas it knows it has nothing to fear from Israel in terms of retaliation? If not, how come the ICRC doesn't have extensive delegations of expatriates and local employees (as it does in Israel where they criss-cross the country taking care of every need of the Palestinians) in Tibet, Northern Cyprus and the Western Sahara? This is the core of the problem the ICRC faces when it keeps accusing Israel of something it is not guilty of while ignoring the countries who are really guilty of the offenses it accuses Israel of: by accepting to apply a double standard against Israel alone, the ICRC has shed much of its credibility as a so-called neutral agency. International law applies equally to all nations, or it applies to none, but it can't be applied to just a few and ignored by the rest.

Next Mr. Shaerer states: "Population transfers for the purpose of establishing settlements are
forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory." That is a blatant exaggeration of what the IVth 1949 Geneva Convention actually says. The article in question, Art.49, Para. 6, says "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Better yet, the ICRC's own commentary on the Geneva Conventions, regarded by most international law scholars as the most reliable interpretation of the GC, specifically says with regard to this provision that "[This clause]... is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories." This article was meant for the likes of Nazi Germany, and rather than Israeli settlers who moved to the West Bank of their own free will, it applies perfectly to the colonizers and settlers imported en masse by China in Tibet, Turkey in Northern Cyprus and Morocco in the Western Sahara. And yet... the ICRC has never said a word about these cases! Israel should stop being so nice and bend over backwards to please the ICRC when the same ICRC has proven itself incapable and unwilling of applying the same rules it wants to impose on Israel while ignoring more blatant cases of violations of the IVth GC. When it does, and proves to be the neutral agency it claims to be, it would then be welcomed back, although its interpretation of international law leading to the conclusion that the IVth GC is applicable to the West Bank remains faulty to this day anyway.

Finally, Mr. Schaerer promises us that "the ICRC envisages engaging in a series of open forum events in 2014", that is, to discuss "the discrepancies between international humanitarian law and certain policies implemented by Israel in the occupied territories". I trust that the real situations of illegal occupations I have mentioned will be prominently debated - in particular the question as to why the ICRC keeps harping on Israel and says nothing about these cases when in fact they meet far better the definition of belligerent occupation than Israel ever has. If not, this promises to be a completely moot and useless exercice.

Jean-Jacques Surbeck
Former member of the ICRC Legal Division in Geneva, Switzerland from 1974 to 1984 (now living in the US).

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