The recommendations regarding Israel’s security fence issued by the International Court of Justice in The Hague in July 2004 have focused Israeli attention on the relevancy and applicability of the Fourth Geneva Convention to the occupied West Bank and Gaza. The ICJ based its deliberations on the assumption that the convention applies. Israel has long insisted that it does not, because these territories were not conquered from a sovereign state and did not constitute such a state prior to their occupation.
The ICJ ruling appears to be but one aspect of a new dynamic. Israel’s prolonged occupation, coupled with the absence of a peace process and the humanitarian hardship inflicted on the Palestinians by four years of war, are generating increasing threats of international sanctions on the part of the UN General Assembly and the Non-Aligned Movement, based on the ICJ interpretation of international law. There is even discussion of possible sanctions by the European Union. In response, both High Court Chief Justice Aharon Barak and Attorney General Menachem Mazuz have recently alluded to the need for Israel’s institutions of government to address or reexamine the applicability of the Fourth Geneva Convention.
Israel claims to be applying the convention de facto but not de jure. It claims to be upholding the humanitarian provisions of the convention, and probably is doing so no better and no worse than most occupiers–the problem, after all, is the political occupation and not the military occupation; if that were the whole story, the convention would not be an issue. But Israel has also settled large parts of the occupied territories and even annexed east Jerusalem, which is part of the West Bank. And it is this seeming permanency and the implication of eventual Israeli sovereignty in some of the territories that appear to place Israel in total conflict with the convention. Israel argues that the settlement movement does not violate Article 49 of the Convention, which prohibits the transfer of the occupiers’ population to occupied territory, and that the application of Israeli law to greater Jerusalem does not violate Article 47, which prohibits annexation of occupied territory. It seems to be saying that even though it applies the convention, the convention does not really apply. Israel also denies that its settlement activities violate Article 55 of the 1907 Hague Regulations regarding the use of occupied state lands. Nobody else in the world seems to agree to these interpretations.
Yet the issue is not really the Fourth Geneva Convention.
Let us assume for a moment that the entire world concurs with us that the convention does not apply due to the technical reason that the West Bank and Gaza Strip were not some other state’s recognized sovereign territory when we occupied them in 1967. Does that make the settlements and what they today represent–the drive of a messianic minority of Israelis to annex the territories and disenfranchise the Palestinians on their own land, thereby turning Israel into an apartheid state–any more legitimate, or even sensible? Does it enhance the twisted logic of annexing, by law and by fence/wall, 225,000 Palestinians to Israeli Jerusalem, thereby ensuring that the Israeli capital will eventually be a non-Zionist city of Arabs and ultra-orthodox Jews?
Perhaps in the eyes of the international community, the problem, or one aspect of it, is the Fourth Geneva Convention. For the majority of Israelis, who want their country to remain Jewish and democratic, the real problem today is not international law but our own folly: how do we deal with an aggressive, energetic and messianic minority that refuses to accept the writ of the government of Israel and begin vacating their settlements.