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…

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.
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.
^