ICC Denial to Palestinians is Proof Settlements are Legal – Part II

by Gedalyah Reback

What’s Customary about the Fourth Geneva Convention?

International Court of Justice

International Court of Justice

If the Fourth Geneva Convention is considered customary, then it shouldn’t matter if a party actually ever agreed to the treaty. Based on this logic, Israel and the Palestinian Authority (or any Palestinian militant group) would have to abide by it. But that doesn’t fully explain the opinion that Israel is still occupying a territory that isn’t its own. A more effective argument would be Israel doesn’t claim the West Bank, despite the settlements that exist there. No part of the West Bank or Gaza was ever annexed by Israel after the Six-Day War except East Jerusalem. Even though it strengthens Israel’s claim to the eastern half of the city, it still, apparently, doesn’t undercut the argument Israel is occupying territory that isn’t its own. So, it cannot be argued that Israel’s not annexing the West Bank is what makes the settlements illegal. If it did, all Israel would have to have done is annexed the land where houses were built. So what is the argument that Israel cannot build the settlements it has in the West Bank and that once existed in the Gaza Strip?

There is further precedent on the issue, going back to the Hague Convention of 1907. Though they are less than the 1949 rules, the 1907 rules define an occupying power and its responsibilities. But even in the most apparent of examples, post-World War II Germany, the Allied Powers never considered the 1907 rules relevant because they weren’t occupying a standing country – the Third Reich had been destroyed, so Germany, technically, ceased to be.

In an advisory opinion to the ICJ in 2004 on the legality of Israel’s barrier (intended to keep suicide bombers out of Israel), there is no explicit reasoning given to the application of the Fourth Geneva Convention other than its customary basis. By saying it might “alter the demographic composition of the Occupied Palestinian Territory and thereby contravene the Fourth Geneva Convention,” the court is assuming the reasoning is based on protecting Palestinian civilians. But this treatment assumes that many of the clauses in the convention are irrelevant. In fact, considering the convention customary is difficult because it has never been implemented formally in any other setting until the Israeli-Palestinian conflict. Even the occupation of Iraq by the US and UK, as argued by those two countries, didn’t fall under the convention’s jurisdiction. Ideas like this declare a state’s irrelevance. But then again, the advisory opinion of the court isn’t binding.


Mahmoud Abbas

In fact, it also cites a 1980 UN Security Council resolution that calls the settlement policy a “flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.” But that resolution isn’t binding. It was issued under Chapter VI of the UN Charter, which most international legal experts consider non-binding. It is the much rarer Chapter VII resolutions which are binding. Going further, it was an advisory opinion to the ICJ that considered the Chapter 6 resolutions binding. In effect, it would be one non-binding opinion solidifying that another non-binding opinion would actually be, well, binding.

For some reason, the ICC refuses to recognize Palestinians’ right to sue because there is no state. It would be a logical extension of the Fourth Geneva Convention understandings to extend it, but it hasn’t happened. The existence of a state is still relevant.

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