Ensuring Respect for the Fourth Geneva Convention: Convening a Conference of High Contracting Parties May 2010 1. Introduction On 5 November 2009, the General Assembly of the United Nations adopted Resolution A/Res/64/10. Operative paragraph 5 recommended that: “the Government of Switzerland, in its capacity as depositary of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, undertake as soon as possible the steps necessary to reconvene a Conference of High Contracting Parties to the Fourth Geneva Convention on measures to enforce the Convention in the Occupied Palestinian Territory, including East Jerusalem, and to ensure its respect in accordance with common article 1”1 This recommendation was made in light of the Report of the UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report),2 and consequent to the deteriorating human rights and humanitarian situation in the occupied Palestinian territory; the recommendation was subsequently endorsed by the Human Rights Council.3 Within both resolutions there is an implicit call for specific, concrete measures, as is evident both through the wording of the resolution – ‘measures to enforce’, ‘ensure its respect’ – and the reference to the powers inherent in common Article 1. The Palestinian Centre for Human Rights (PCHR) has prepared this memorandum in order to briefly illustrate the legal situation surrounding the convening of a Conference of the High Contracting Parties, and to make specific recommendations regarding the legal mechanisms available to High Contracting Parties as they fulfil their obligation to enforce, and ensure respect for, the Fourth Geneva Convention. Throughout the course of its 42‐year occupation, Israel has consistently and systematically violated international law. Despite the widespread perpetration of, inter alia, grave breaches of the Geneva Conventions and crimes against humanity, Israel has not been held to account; despite overwhelming and readily available evidence, not once has a senior Israeli official been investigated, tried, or prosecuted in accordance with the demands of international law. As noted by the Goldstone Report, the “prolonged situation of impunity has created a justice crisis in the Occupied Palestinian Territory that warrants action.”4 It is evident that if the rule of law is to be respected, it must be enforced. The history of the occupation has shown that as long as Israel continues to be allowed to act as a State above the law, it will continue to violate international law; it is innocent Palestinian civilians, the ‘protected persons’ of the Geneva Conventions, who will continue to suffer the horrific consequences. 1 UN General Assembly Resolution, Follow‐up to the report of the United Nations Fact‐Finding Mission on the Gaza Conflict, U.N. Doc. A/Res/64/10, 5 November 2009, §5. Emphasis added. 2 Report of the United Nations Fact Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48, 25 September 2009, §1971(c). 3 UN Human Rights Council Resolution A/HRC/13/L.30, 22 March 2010, §7. 4 Report of the UN Fact Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48, §1958. The convening of a conference of the High Contracting Parties offers a rare opportunity to develop international humanitarian law, and to ensure that it remains capable of serving those it is mandated to protect. It is imperative that the proposed conference be held, and that it results in practical measures intended to ensure Israel’s compliance with international humanitarian law. 2. The Necessity of Convening a Conference of the High Contracting Parties International humanitarian law – and the Fourth Geneva Convention in particular – extend specific and explicit protections to civilian populations. However, in order to prove capable of protecting civilians, the law must be respected and enforced. Over the course of the occupation, Israel has consistently and systematically violated international law, including international human rights and humanitarian law. Since the outbreak of the second Intifada in September 2000, at least 6,542 Palestinians have been killed by Israeli forces, 4,364 (67%) of whom were civilian. A further 20,257 have been injured, including 18,932 civilians (93%).5 PCHR has consistently highlighted the deterioration of the human rights and humanitarian situation in the oPt, and called for a convening of the conference of the High Contracting Parties to the Fourth Geneva Convention, in order to ensure Israel’s compliance with international law.6 The impunity granted by the international community has resulted in Israel’s continuing – and escalating – violations of international law. 5 Figures based on PCHR documentation, 29 September 2000 – 31 March 2010. 6 See the following Memoranda to the High Contracting Parties to the Fourth Geneva Convention submitted by the Palestinian Centre for Human Rights: ‘Implementation not Impunity: International Humanitarian Law sill not being applied to the Occupied Palestinian Territory’, July 2005, (available at: http://www.pchrgaza.org/files/Reports/English/pdf_spec/PCHR%20Memorandum%20Implementation.pdf); ‘Three Years of Israeli Violations of International Humanitarian Law in the Occupied Palestinian Territories: The Need for Accountability’, September 2003 (available at: http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=2804:three‐years‐of‐israeli‐ violations‐of‐international‐humanitarian‐law‐in‐the‐occupied‐palestinian‐territories‐the‐need‐for‐ accountability&catid=47:special‐reports&Itemid=191); and ‘The Obligation to ensure Respect’, November 2001 (available at: http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=2792:the‐ obligation‐to‐ensure‐respect&catid=47:special‐reports&Itemid=191). Such violations are often enacted consequent to publicly expressed governmental policy, as is the case, for example, with respect to the extrajudicial execution of suspected individuals or the construction of illegal settlements in the West Bank.7 The International Committee of the Red Cross (ICRC) has confirmed this reality: “In the course of its activities in the territories occupied by Israel, the ICRC has repeatedly noted breaches of various provisions of international humanitarian law, such as the transfer by Israel of parts of its population into the occupied territories, the destruction of houses, failure to respect medical activities, and detention of protected persons outside the occupied territories. Certain practices which contravene the Fourth Geneva Convention have been incorporated into law and administrative guidelines and have been sanctioned by the highest judicial authorities.”8 Most recently, specific and extremely grave violations of international law perpetrated in the context of Israel’s offensive on the Gaza Strip (27 December 2008 – 18 January 2009) have been documented in the Goldstone Report,9 the Report of the Independent Fact Finding Committee of the Arab League,10 the Report of the UN Board of Inquiry,11 and through the work of independent national and international organisations.12 PCHR emphasizes that documented violations include a significant number of grave breaches of the Geneva Conventions, such as wilful killing, the extensive destruction and appropriation of property not justified by military necessity, torture, and depriving a protected person of the right to a fair trial. These war crimes are universally abhorred by the international community, and give rise to individual criminal responsibility, if necessary through the exercise of universal jurisdiction.13 Israeli policies have resulted in the almost total suffocation of economic, political and social life in the oPt. The tragic effects of this illegal reality are particularly evident in the Gaza Strip. Since June 2007, 7 A violation of an individual’s right to due process, a fair trial, and an act of willful killing, a grave breach of the Geneva Conventions. See, for example, Israel High Court of Justice, The Public Committee against Torture in Israel et al, v. The Government of Israel et al, HCJ 769/02, 14 December 2006; Uri Blau, License to Kill, Haaretz, 27 November 2008. Settlements are an explicit violation of Article 49 of the Fourth Geneva Convention, they also constitute a war crime, as codified in Article 8(2)(b)(viii) of the Statute of the International Criminal Court. 8 Statement by the International Committee of the Red Cross, Conference of the High Contracting Parties to the Fourth Geneva Convention, Geneva, 5 December 2001, §5. 9 Report of the United Nations Fact Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48, 25 September 2009. 10 Report of the Independent Fact Finding Committee on Gaza: No Safe Place, Presented to the League of Arab States, 30 April 2009. 11 Secretary‐General’s Summary of the Report of the United Nations Headquarters Board of Inquiry into certain incidents in the Gaza Strip between 27 December 2008 and 19 January 2009, Presented to the Security Council, 5 May 2009. 12 See, for example, Palestinian Centre for Human Rights, Targeted Civilians, 2009; Amnesty International, The conflict in Gaza: A briefing on applicable law, investigations, and accountability, 2009; Human Rights Watch, Rain of Fire: Israel’s Unlawful use of White Phosphorous in Gaza, 2009. 13 See, Articles 146 and 147 Fourth Geneva Convention. Israel has imposed a total closure of the Gaza Strip; this closure constitutes a form of collective punishment directed against the civilian population and is explicitly