QUESTION #7
What other documents of International Law might be relevant?
The Hague Convention of 1907
Most contemporary documents relating to International Law address
issues such as: general human rights in peacetime; nuclear weapons;
Maritime Law, etc. The only other important document relating to
warfare and International Law is the Hague Convention of 1907,
regarding the laws and customs of war on land.
The UN request for an International Court of Justice advisory specifically
recalls the Hague Convention in one of its introductory paragraphs.
Although technically not applying to non-signatories such as the
Palestinian Authority, as with the Fourth Geneva Convention, the
State of Israel has chosen to apply all relevant provisions.
Land seizures and the “necessities of war”
The only article in the Hague Convention of relevance
to the current advisory is Article 23, and specifically paragraph
(g) which says that it is forbidden
… to destroy or seize the enemy's property, unless
such destruction or seizure be imperatively demanded by the necessities
of war.
The key objections to the security fence being built by Israel
is that a significant percentage of the fence lies within territory
claimed by the Palestinians.
Article 23 clearly shows that random land seizure is forbidden,
while confiscation or expropriation for military purposes is permissible.
As with similar articles in the Fourth Geneva Convention (see
Question #6), the problem for the International Court of Justice
is to decide whether or not concepts such as “the necessities
of war” is adjudicable, and, if so, whether a fence intended
to stop the penetration of terrorists can be considered such a “necessity”.
Due to lack of precedents within the history of ICJ advisories (see
Question #2), it is unclear whether or not such issues fall
within the competence of the Court.
Whether or not public land within the West Bank should be considered
“the enemy's property”, i.e. in this case Palestinian,
please read the analysis of Question #5.
1977 Protocol I Additional to the Fourth Geneva Convention
In 1977 an addendum was made to the Fourth Geneva Convention. Though
not considered a completely separate document on warfare and International
Law, the Protocol does have some important clarifications and addendums
to the Fourth Geneva Convention.
There is some doubt as to whether the Protocol is applicable to
the current case as roughly one third of all countries, including
Israel, did not sign it.
Nevertheless, given the fact that the UN included the Protocol
as a document relevant to the current ICJ advisory, it will be addressed
below.
(As a parenthetical explanation, the most likely cause for the
relatively high number of non-participating countries is probably
the rather politicized language of Article 2, which refers to
… peoples... fighting against colonial domination
and alien occupation and against racist regimes in the exercise
of their right of self-determination.
No doubt, there was much concern that any country involved with
any group challenging their sovereignty could be opening itself
up for future diplomatic and legal problems, should a Security Council
resolution label it as what otherwise should be a non-pejorative
term, “Occupying Power” -- hence the failure
of many countries to sign.)
First, it should be pointed out that Article 3b
specifies that the Protocol and its provisions apply both to general
combat situations, as well as to occupations.
For the purpose of this analysis however, the party in a position
to do harm to a civilian population will be considered as specifically
an Occupying Power, although the Protocol intended the term “Party”
to refer to either an Occupying Power or to an army or military
force encountering foreign civilians, though not in actual control
of their government.
Article 54: Strong support for the legality of the security
fence
Easily the most relevant article to the current advisory on Israel's
security fence is Article 54, because it relates to the possibly
destructive aspects of the fence for the Palestinian Arab population.
It begins with the issue of starvation, but quickly branches out
to other more relevant areas.
Article 54 in full:
Protection of objects indispensable to the survival of the
civilian population
1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless
objects indispensable to the survival of the civilian population,
such as food-stuffs, agricultural areas for the production of
food-stuffs, crops, livestock, drinking water installations and
supplies and irrigation works, for the specific purpose of denying
them for their sustenance value to the civilian population or
to the adverse Party, whatever the motive, whether in order to
starve out civilians, to cause them to move away, or for any other
motive.
3. The prohibitions in paragraph 2 shall not apply to such of
the objects covered by it as are used by an adverse Party:
(a) as sustenance solely for the members of its armed forces;
or
(b) if not as sustenance, then in direct support of military action,
provided, however, that in no event shall actions against these
objects be taken which may be expected to leave the civilian population
with such inadequate food or water as to cause its starvation
or force its movement.
4. These objects shall not be made the object of reprisals.
5. In recognition of the vital requirements of any Party to the
conflict in the defence of its national territory against invasion,
derogation from the prohibitions contained in paragraph 2 may
be made by a Party to the conflict within such territory under
its own control where required by imperative military necessity.
In paragraph 2, we find issues which certainly relate
to the concerns of the Palestinian Arabs, and hence to the legality
of the fence.
For example, rendering agricultural land inaccessible is forbidden,
when the object is specifically to deny the population the sustenance
value of the land. However, the object of the security fence is
to deny terrorists easy entry into Israel, into military bases within
the West Bank, and into Jewish population centers within the West
Bank.
Thus the International Court of Justice, if using Protocol
I as a standard, would have to consider what the purpose of
the security fence is, in order to determine whether it is in violation
of Article 54.
In principle, the fence's express purpose is not inherently illegal.
Paragraph 3b describes a circumstance where an Occupying
Power can a priori render as useless areas otherwise important for
the sustenance of the local population.
This section states that where some area or object has provided
direct support for military action against the Occupying Power,
the only factor which would disallow rendering that area or object
inaccessible to the population is if doing so would mean literally
starving the population.
No one has claimed that the security fence would create such an
extreme situation, and therefore the fence would seem to be allowable
under Article 54 of Protocol I, or at least in those areas from
where Palestinian attacks have originated.
Since terrorist infiltrations into Israel proper have originated
from Arab towns and villages throughout most of the West Bank, and
since the Jewish towns and villages in the West Bank have all been
repeatedly threatened and attacked by Palestinian terrorists, most
- if not all - of the fence would fall into this category of justified
cases of restricted movement.
Finally, paragraph 5 explicitly states that the right
to self defense of an Occupying Power's national territory against
invasion justifies measures, even where vital land becomes inaccessible
to the local population under occupation.
Thus, the last paragraph of Article 54 lays down the
legal framework upon which the security fence can be justified,
even when it deviates from the 1967 border, and even when the local
area of the fence has not been directly implicated in supporting
military or terrorist infiltrations, as per paragraph 3 above.
If the above interpretation of Article 54 is accepted by the ICJ,
the only outstanding questions regarding the legality of the fence
would involve determining if attempting to prevent rampant terrorist
infiltrations constitutes “imperative military necessity”
(see Question #6 on the 4GC) and whether
this same rampant terrorist infiltration constitutes “invasion”
or proves the potential for invasion.
The lessons of September 11th 2001 would seem to teach us that
the answer to both questions is a resounding “Yes”.
For beyond the already tragic loss of life that has occurred since
the signing of Oslo, and especially since the dramatic increase
of terrorism which began in October 2000, there is a very real
concern that without a security barrier installed at a distance
from Israel's borders to create sufficient warning time, a terrorist
attack of major proportions could be perpetrated.
Two near-successful mega-attacks in 2002
Indeed, there have been at least two near-successful attempts
at “mega-attacks” on Israel by Palestinian West Bank-based
forces.
The threat to Israel from terrorism is clear and present, and
could be as devastating as a conventional military invasion. Therefore,
under Article 54 of the 1977 Protocol to the Fourth Geneva Convention,
the concept of an anti-terrorism fence built on occupied territory,
even where it causes hardship to the local population, would seem
to be manifestly legal.
Recent Security Council resolutions in the wake of the attacks
on the World Trade Center and Pentagon add further support to this
interpretation.
Article 4: Occupying Powers are not necessarily foreign to the
Occupied Territory
Article 4 is also quite interesting in that it answers
a question whose answer is only implied in the Fourth Geneva Convention,
namely:
Does the application or the applicability in principle of
the Fourth Geneva Convention to a given occupied territory imply
anything about the legal status of the territory, or about the
sovereignty claims of either the Occupying Power or the local
protected persons under occupation?
The answer is clearly: No.
The text of Article 4 reads:
The application of the Conventions and of this Protocol, as
well as the conclusion of the agreements provided for therein, shall
not affect the legal status of the Parties to the conflict. Neither
the occupation of a territory nor the application of the Conventions
and this Protocol shall affect the legal status of the territory
in question.
This is an important point, because there is a common misconception
that if the Fourth Geneva Convention is applicable to the West Bank
and other disputed territories - and specifically, if Israel can
be termed an “Occupying Power” - it ipso facto
means that Israel must be a foreign invader without a legal claim
to any of the territories.
This is simply not the case, as is clear from the text of Article
4 of the Protocol.
This point regarding the lack of connection between occupation
and the legal status of the land, and parties involved, is implicit
in the text of the original 4GC - which studiously avoids any language
that might imply that Occupying Powers are necessarily on foreign
soil, or that protected persons necessarily have sovereign rights.
Hence, the application of the Fourth Geneva Convention or Protocol
I to the West Bank does not prejudge the legal status of the land,
the Israeli claims, or the Arab claims.