Israel’s Views of the Application of IHL to the West Bank and Gaza Strip

By Kenneth Anderson  

Although the West Bank and Gaza are referred to by nearly all other States as “occupied territories,” implying that all Israeli activities in them are governed by the Fourth Geneva Convention of 1949, Israel calls them “administered areas” and has a different view of its obligations and their legal status.

The Israeli government view, laid out in legal memoranda issued by its Ministry of Foreign Affairs, is that the territories did not belong to any sovereign State at the time Israel captured them during the 1967 war. That is, Egypt did not claim the Gaza Strip, and Jordan may have claimed the West Bank, but Israel and the great majority of states did not recognize that claim; and Palestinians did not assert sovereignty to the territory at that time. In addition, UN resolutions 242 and 338, which call upon Israel to withdraw from occupied territory, did not say that other States claimed sovereignty at the time. Israel further argues that any Palestinian claims to sovereignty over the territories based upon the UN General Assembly partition resolution of 1947 were rendered invalid because the Palestinians and allied Arab states rejected the resolution and took up arms against it.

Accordingly, in the Israeli view, the Fourth Convention is inapplicable on its face, since under the second paragraph of Article 2 common to all four Conventions of 1949, the Conventions apply only to “occupation of the territory of a High Contracting Party.” Formal recognition of the applicability of the Convention, Israel argued, implied a recognition of the sovereignty of the former administration.

Nevertheless, the Israel government in official statements has pledged compliance with what it views as the humanitarian and customary provisions of the Convention—but without stipulating which articles it has in mind. Israel claims it has gone further than required in its protection of the local population of the territories. For example, although the Convention accepts the legality of the death penalty, it is not applied even to horrific acts of terrorism. Similarly, the Convention does not require that any provision be made for movement of the local population to and from territories, whereas Israel, within limits, permits such travel and trade, even to countries in a legal state of war with Israel.

The United Nations Security Council, the International Committee of the Red Cross, States, and scholars have criticized Israel’s legal position. Critics note that Article 1 of the Fourth Geneva Convention requires a High Contracting Party to “respect and ensure respect” for the Convention “in all circumstances.” Moreover, Article 4 stipulates that “persons protected by the Convention are those who, at any given moment, and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which they are not nationals.” Thus, critics agree, Israel should apply the full Convention, and it is an exaggeration to claim that accepting the applicability of the Convention implies acknowledging prior sovereignty.

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