QUESTION #6
What articles in the 4th Geneva Convention might be germane to
the fence's construction?
Background:
The Fourth Geneva Convention (henceforth “the Convention”
or “the 4GC”) is a protocol of how countries which are
“High Contracting Parties”, i.e. signatories
of the Convention, should conduct themselves should they be in a
situation where their army controls the territory and government
in which civilians of another signatory country live. In this situation,
the controlling country is called “the Occupying Power”,
while those living under occupation are called “protected
persons”. (For a discussion of whether or not Israel
qualifies as an Occupying Power, please see the analysis
of Question #4.)
Occupying Powers have a number of rights and obligations under
the provisions of the 4GC. The basic approach of the 4GC is that,
regardless of whether any given occupation is legal or illegal,
mutually-agreed upon standards of conduct can help to insure that
non-combatant civilians living under occupation do not have to suffer
any more than necessary given the wartime environment.
Recognizing that security is a legitimate concern during wartime,
and recognizing that not all civilians choose to remain non-combatants,
the authors of the 4GC wisely created a system of “restrictive
measures” which constitute the legal options for self-defense
on the part of the Occupying Power.
At the same time, with equal wisdom, the authors put certain limits
on what, when, and how the Occupying Power may implement restrictive
measures with regards to the civilians under its control.
Below is a list of the articles most relevant to the issues surrounding
the construction of Israel's security fence, with an accompanying
brief analysis after each article or article excerpt. Since most
of the concern about the fence has centered on the legality of the
restrictiveness of the fence, those articles which deal with restrictive
measures are especially emphasized.
The articles of the Fourth Geneva Convention most relevant to
the issue of the security fence:
Freedom of movement
Article 23: ...The obligation of a High Contracting Party
to allow the free passage of [medical, religious, food, and clothing]
consignments... is subject to the condition that this Party is
satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts
or economy of the enemy
through the substitution of the above-mentioned consignments for
goods which would
otherwise be provided or produced by the enemy
Article 23 clearly demonstrates that freedom of movement
is not a right of persons living under occupation. Even the movement
of basic necessities is controlled by the Occupying Power.
If innocuous food items can represent a security threat justifying
the restriction of movement by the Occupying Power, certainly people
who are capable of perpetrating attacks on civilians can be restricted
in their movement as well.
Therefore, the fact that the security fence limits the free movement
of persons living in the West Bank does not render it illegal.
To further underscore that freedom of movement, while a human right
in peacetime, is by no means a right of protected persons under
the Fourth Geneva Convention, the proper interpretation of the oft-quoted
Article 49 will be considered.
After stating that no matter the motive, forced transfer is definitively
illegal, Article 49 then goes on in paragraph 2 to provide two critical
exceptions:
Nevertheless, the Occupying Power may undertake total or
partial evacuation of a given area if the security of the population
or imperative military reasons so demand. Such evacuations may
not involve the displacement of protected persons outside the
bounds of the occupied territory except when for material reasons
it is impossible to avoid such displacement. Persons thus evacuated
shall be transferred back to their homes as soon as hostilities
in the area in question have ceased.
If “imperative military reasons” can legalize
the transfer of entire populations against their will, then there
can be no doubt that freedom of movement is not a right of protected
persons. Put differently, Occupying Powers have the right to restrict
movement, in accordance with their military needs.
The issue of freedom of movement therefore really boils down, from
a legal perspective, to:
There is no precedent in the history of ICJ advisories, regarding
the Court's competence to determine what the military needs of a
country are.
Moreover, no country has had to cope with such a high degree of
terrorist and guerilla attacks, making it all the harder to look
for precedents by which to judge the proportionality of the response.
Nevertheless, the ICJ could look to the UN's condoning of Morocco's
thousand-mile security barrier in Western Sahara (for
details, see Question #2) as an example of how far fewer attacks
and far less serious attacks can still justify the construction
of a security fence in occupied territory.
Military operations in the heart of populated areas
Article 28: The presence of a protected person may not be
used to render certain points or areas immune from military operations.
The fence is being built in some areas where there are Palestinians
living in the immediate vicinity. Some claim that the IDF may not
operate in such areas because it disrupts the lives of those living
there, and that, by extension, the fence is illegal in those areas
where it disrupts Palestinian lives.
However, Article 28 informs us that the presence of protected persons
does not prevent the Occupying Power from taking military actions
there. This could apply equally well to military operations involving
weapons, or to the construction of a security fence for strictly
defensive, military purposes.
Collective punishment vs. Restrictive measures
So far it would seem that the 4GC allows Occupying Powers much
leeway for security with few real restrictions on that leeway. One
article which puts a check on the possible disproportionate use
of force is Article 33:
No protected person may be punished for an offence he or
she has not personally committed. Collective penalties and likewise
all measures of intimidation or of terrorism are prohibited.
The ICJ could rule that the fence is a kind of collective punishment,
in response to the crimes of individual Palestinians who attack
Israelis.
But it could also view the fence not as a punishment, but as a
restrictive measure, insuring Israeli security. Again, there seems
to be little precedent to help guide the ICJ in determining such
a subtle point.
Restrictive measures affecting property
Article 46: In so far as they have not been previously withdrawn,
restrictive measures taken regarding protected persons shall be
cancelled as soon as possible after the close of hostilities.
Restrictive measures affecting their property shall be cancelled,
in accordance with the law of the Detaining Power, as soon as
possible after the close of hostilities.
Article 46 provides further proof that property can be the object
of restrictive measures, and that in general, such measures need
only be repealed after the close of hostilities, and not as a condition
for the ending of hostilities.
Article 53: Any destruction by the Occupying Power of real
or personal property belonging individually or collectively to
private persons, or to the State, or to other public authorities,
or to social or cooperative organizations, is prohibited, except
where such destruction is rendered absolutely necessary by military
operations.
The 4GC clearly provides that destruction of property may occur
for the purpose of carrying out military operations.
Article 53 only comes to prohibit random or punitive
destruction of property, but not to interfere with an Occupying
Power's military actions.
The security fence under discussion has been cited as occasionally
causing property damage. Assuming this is an accurate description,
the question becomes whether, as a kind of military operation, the
damage caused by the fence was “absolutely necessary”,
or could have been avoided without compromising the effectiveness
of the fence in the relevant area.
Again, this is the kind of question which may be beyond the competence
of the ICJ to adjudicate.
Synopsis:
The Fourth Geneva Convention clearly grants Occupying Powers the
right to take military actions within the occupied territory which
guarantee its security.
In addition, Occupying Powers have the right to place restrictions
on the local population, including restriction of movement, restriction
of goods and services delivered, and can even include destruction
of personal property.
In all such cases there is mitigating terminology, such as “imperative
military reasons” and “absolutely necessary”.
On what basis the International Court of Justice will determine
if the fence meets these vague but important stipulations is unclear.
The case of the Moroccan security barrier in Western Sahara (see
Question #2) may provide a precedent.
Ultimately the Court may decide that the situation is too complex
for it to be appropriate for the Court to rule on the matter.