Sunday, May 10, 2015

Giuditta Riva and International Law

I spotted this exchange in a recent Haaretz column of Liat Elkayam, 'Departures | Arrivals':

Giuditta [Riva]: It’s so easy to connect with Israelis. There are hardly any walls here between people, apart from the one in the territories…

 a 2008 snap

Do I detect a bit of political criticism here?I want to make it clear that I understand perfectly how easy it is for foreigners like me to come to Israel and be critical of the political situation. In Italy, no one has a reason to be afraid of taking a bus or going to church. It’s easy to be tolerant and respectful of human rights when your children aren’t risking their lives.

Are human rights a subject close to your heart?A week ago I completed my master’s degree in law, specializing in international law. When I was here last time, it was to write my thesis.

About Israel?The application of human rights in the occupied territories – a very complex subject.

Tell me about itOverall, I think there is a line that runs between good and bad, and sometimes that line snaps and it’s impossible to know who’s good and who’s bad. On paper, Israel is violating international law in a number of ways, but I understand why a state will do all it can to protect its citizens. My thesis is about international law, according to which – and this is the accepted belief in international courts – Palestine is occupied, and human rights and international law apply there. The Israeli opinion, which has no legal basis, is that the Geneva Convention is inapplicable in the territories, because Palestine is neither a state nor is it a territory under Israeli jurisdiction. But everyone has human rights, it’s not a matter of geographical boundaries.

Is there anyone on Israel’s side in this issue?The United States. In Guantanamo, the U.S. put forward exactly the same argument: that Guantanamo is extraterritorial and therefore the Geneva Convention does not apply.

How do we move ahead?There are many possibilities, but from a legal standpoint it’s first of all a theoretical question: Should humanitarian law and human rights be applied in Palestine?

What’s the answer?That Israel is not doing it, but should.

I think there are some basic errors in Ms. Riva's presentation.

First of all, the main reason why Israel rejects the full application of the Geneva Convention is that that treaty is between "High Contracting Parties".  The definition of high contracting parties is, simply, the representatives of states who have signed or ratified a treaty, and quite specifically states.

"Palestine", or the "Arab state" as originally envisioned by the UN's 1947 Partition Plan recommendation, never existed and certainly did not in 1967.  UN Resolution 242 refers to "member states" and "states in the area", which 'Palestine' was not.  There was no High Contracting Party that controlled those territories legally.

Second, Israel actually does apply humanitarian law to the administered territories of the Palestine Mandate not under Israeli sovereignty.  Here is an opponent of Israel admitting:

the Israeli government has consistently contested that the Fourth Geneva Convention is applicable de jure to the situation prevailing in the Occupied Palestinian Territory, it does nevertheless accept a de facto application of what it calls the ‘humanitarian provisions’ of the Convention. Moreover, the Israeli Supreme Court has clarified that certain provisions of the Convention as well as the rules of the 1907 Hague Regulations reflect customary IHL and are therefore binding on the authorities in the territories

Israel ratified the Fourth Geneva Convention in 1951. In principle, Israel rejects the applicability of the Fourth Geneva Convention to the West Bank and the Gaza Strip as it considers those territories as captured in 1967 as the result of a defensive war against countries that had illegally occupied them in 1948...the governments of Israel had undertaken to act in accordance with the Fourth Geneva Convention, and the Israeli High Court of Justice considered that Israel holds the Palestinian territories by virtue of belligerent occupation.

In other words, there is an argument about the political aspects of the administration of Judea and Samaria but not as regards any and all strictly humanitarian responsibilities. And by 'political', it is taken to be the means to achieve an eventual resolution of the conflict and what that final resolution will reflect on Jewish rights, including the right of residence.  The counter-argument to Israel's position is expressed by the International Committee of the Red Cross, for example, is that the establishment of Jewish communities and villages and towns in Judea and Samaria, and in Gaza until 2005, is a policy that

amounts to a violation of IHL, in particular the provision of the Fourth Geneva Convention prohibiting the transfer of part of the population of the Occupying Power – in this case Israeli citizens – to the occupied territory.

That approach is ridiculous in that it ignores the provision of the League of Nations which guaranteed, in those very territories, the right of "close settlement on the land" or, as I noted, the right of Jewish residence.

As a less-than-sympathetic Israel scholar wrote

the chorus of recriminations against Israeli settlements disregards the (by no means trivial) segment of settlements in the West Bank, undertaken by Israeli nationals individually – at times, on private land owned by Jews since the days of the British Mandate...or on parcels of private land purchased for full market value from those having title to it – without any financial or other sponsorship from the Israeli Government (indeed, in not a few instances, against the official policy of the Government). When settlers act entirely on their own initiative, when they do not arrogate to themselves land belonging to others or expropriated from its rightful owners, and when they do not benefit from any overt or covert governmental inducement,

 Thirdly, in not seeking the full implementation of humanitarian law to Jews in those areas, the international community is derelict in its neutrality.  In the first place, Jordan's illegal occupation was ignored.  In the second place, other ongoing illegal occupations in Morocco, Tibet, Cyprus, etc. are ignored.  And in the third place, Jews lived in those territories for centuries and were ethnically cleansed, in many cases through extreme violence, pogroms and massacres, but the world that wages battle against Israel in forums using 'international law' are blind to those Jewish rights.

A fuller discussion of Israel's legal rights in Judea and Samaria I listed here.

If she wants to visit me, she's more than welcome.


1 comment:

Anonymous said...

By the way, she’s also wrong about the US: the US never made the argument that Guantanamo is extraterritorial and therefore the Geneva Convention doesn’t apply (nor, frankly, did Israel ever make the argument that the Geneva Convention does not apply extra-territorially).