We know the images well: ethnic cleansing in Serbia, Bosnia and Croatia, intra-communal violence in Northern Ireland, and competing claims to land rights spurring the forcible transfer of populations in Palestine and Israel. Claims to self-determination and minority rights, often found at the heart of intra-state disputes, draw actors to international law to determine the scope and nature of those rights. Indeed, the demands posed by ethno-nationalist disputes have moved the discourse beyond whether international law applies to ethnic conflict to how ethnic conflict has “shaped” interpretation of international law. [1] The ambiguity of the relevant international instruments has led some to question the relevance of international law. In fact, some would argue, the intrusion of such ill-defined concepts as self-determination can exacerbate rather than ameliorate conflict. So just what is the role of international law in these disputes?
First, it is clear that international human rights and humanitarian law is indeed relevant to intra-state disputes. Recognizing this is key to any subsequent analysis. Various rules, enumerated in the relevant human rights and humanitarian law instruments, govern the conduct of a state during times of peace and war. These include provisions regulating the acquisition of territory by acts of aggression, the treatment of political prisoners and fair trial regulations. Although these instruments are largely (and I would argue deliberately) vague, the failure of international law to respond adequately to the demands posed by intra-state conflicts cannot be attributed solely to the constructive ambiguity of these texts. What can be stated is that the effective enforcement of human rights and humanitarian law provisions rests with the international community. That said, it follows that ethno-nationalist disputes, by exposing the limitations of international law, have also exposed the lack of international commitment to human rights and humanitarian principles. [2]
This becomes clearer when we examine the internationally brokered agreements that have emerged from ethno-nationalist disputes — Dayton and Oslo are but two that come to mind. The status of these negotiated political agreements in international law is ambiguous. Do negotiated political agreements trump international law? Raising this question is neither a normative exercise nor a revisiting of the idealist versus realist debate. Alarmingly, these flawed political agreements [3] have assumed a de facto legal status and have displaced relevant international law in practice. As a result, compliance with international human rights and humanitarian law has been rendered negotiable.
Let us examine the case of Israel-Palestine and the related “peace” agreements as a case in point. A logical starting point is to inquire about the nature of the relationship between the Oslo accords and the accompanying agreements and international law. The Palestinian-Israeli accords are intra-, not inter-state agreements, and hence are not strictly subject to international law. The US- and Jordanian-mediated Israeli-Palestinian peace accords are interim within an increasingly gray area of international law.
Yet the accords and their supporting agreements merit examination on two points. First, the interim arrangements themselves must be evaluated in terms of their compatibility with international humanitarian and human rights law with a view to ensuring that whatever final arrangements are reached will comply with customary as well as conventional international laws. Second, the Israeli government has rejected the relevance of the Fourth Geneva Convention and, as expressed in High Court decisions, is increasingly evaluating the lawfulness of its policies in the Occupied Territories based on compliance with Israeli internal law at the expense of customary international law. Although most astute commentators agree that the peace accords are largely imperfect, the texts do call for compliance with some aspects of international humanitarian law (while largely discounting others); therefore, Israeli compliance with or violations of the provisions of the interim arrangements can and should be evaluated according to international legal principles.
The 1993 Declaration of Principles (DOP) on Interim Self-Government Arrangements for Palestinians and the 1995 Interim Arrangements (or Oslo II) largely fail on both the first and second points, as the documents are riddled with limitations arising from the impossible task of reconciling Palestinian and Israeli/Jewish national interests. Language is left deliberately vague or even contradictory. For example, Article 1 of the DOP indicates that “negotiations on the permanent status will lead to the implementation of UN Security Council Resolutions 242 and 338.” This would ostensibly comply with customary international law prohibiting the acquisition of territory by war and calling for the withdrawal of forces from occupied territories. However, subsection 3 of Article 1 defers consideration of most of the key sticking points of negotiations — the status of Jerusalem, settlements, refugees, borders and security — to the final negotiations.
Article 4 of the DOP allows for jurisdiction of the Palestinian Authority (PA) over West Bank and Gaza territory, “except for issues that will be negotiated in the permanent status negotiations.” These “issues” are later defined in Article 5(3) to include settlements. Matters that are not transferred to the PA, according to the Agreed Minutes, [4] remain under the control of the Israelis. Therefore, while the DOP calls for the implementation of 242 and 338, which require Israel’s withdrawal from the Occupied Territories, it also allows Israel to maintain control over settlements in the West Bank, Gaza and East Jerusalem. The PA’s limited legislative powers do not allow it to review matters outside of those accorded to it under the interim arrangements. Therefore, the PA cannot review land acquisition or settlement practices. In short, both the DOP under international law, was meant to be temporary.
The deliberately ambiguous nature of the language and the deferral of the most contentious issues to the final negotiations allow Israel to breach some aspects of the interim Arrangements while maintaining ostensible compliance citing other provisions. Under Article XXXI.7 of the Interim Agreement, “[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” This suggests that the construction of Israeli settlements and the confiscation of land for bypass roads in the Occupied Territories is not permissible. This provision, however, conflicts with another positing that settlement construction and administration of settlements are beyond the remit of the accords. Hence, Israel can claim:
In fact, neither of the agreements in force between Israel and the PLO — the Declaration of Principles and the Interim Agreement — contain any provision prohibiting or restricting the establishment or expansion of Israeli settlements. Similarly, none of the other agreements between the two sides, now superseded by the Interim Agreement, contained such a provision. At various stages during the negotiations over these agreements, requests were made by the Palestinian side to include such a provision. Israel, however, opposed the inclusion of such a provision, pointing out that Israeli policy in this regard had already been established in a number of decisions by the Israeli Government, and explaining that it was not prepared to undertake any commitment beyond these unilateral Government decisions. [5]
The Declaration of Principles does indicate, in Article V, that settlements and their administration are among a number of issues to be negotiated in the permanent status negotiations. Article IV provides that the jurisdiction of the Palestinian Council covers “West Bank and Gaza Strip territory, except for those issues that will be negotiated in the permanent status negotiations.” Accordingly, restrictions on settlement activity during the interim period are entirely absent, and the Council has no jurisdiction over settlements or Israelis living within settlements. All matters pertaining to settlements and settlers remain under exclusive Israeli authority throughout the interim period. [6]
In response to Palestinian claims that settlements violate Article XXXI.7 of the Interim Agreement, Israeli officials argue:
The suggestion that this provision prohibits settlement activity is disingenuous. The building of homes has no effect on the status of the area. The prohibition on changing the status of the areas is intended to ensure that neither side takes any unilateral measures to change the legal status of these areas (such as by annexation or a declaration of statehood) pending the final status talks. Moreover, since the provision applies to both sides (“Neither side…”), were it to prohibit building, it would prohibit the construction of homes for Israelis and Arabs alike. This is not only impractical but also clearly not what was envisaged by the Interim Agreement, which contains provisions dealing with planning and zoning, on the assumption that building is to continue throughout the interim period. [7]
The deftly woven ambiguity of the accords may have secured the initial Israeli and Palestinian agreement, but this ambiguity has also enabled Israel to claim compliance with the accords while violating international law. In fact, as LAW correctly observed:
Despite the actions taken by the Israeli Government following the Oslo Accords, the Accords themselves are perceived as somehow being over and above existing international law. This position has never been stated by Israel, but this is evident from the agreements and from Israel’s practice. Instead of references to international law, Israel makes constant reference to the violations of the Oslo Agreements, even where its own activities, in fact, breach international law. [8]
In an insightful review of Israeli policy in the Occupied Territories, Emma Playfair notes that the necessary imprecision of international law governing an occupier’s conduct has allowed both the government and the High Court of Israel to provide varying interpretations of relevant provisions to suit various Israeli policy objectives. [9] However, it has been her argument that Israeli administrative and legal practices in the Occupied Territories “exceed the natural meaning of these provisions and cannot be explained only by the lack of clarity in the law.” [10] It can, however, be explained by a point raised earlier: Commitment to enforcement at the international level is critical for ensuring compliance with the relevant international legal provisions. The Israelis do what they do, quite simply, because they know they can get away with it. They also know that the ambiguity of the various Israeli-Palestinian peace accords work decidedly in their favor and, since this has become the international standard governing their conduct, they can continue to violate international humanitarian law while simultaneously claiming (at times correctly) to be in compliance with the intra-state “peace” accords.
Most astute observers of the Palestinian-Israeli conflict acknowledge Israeli non-compliance with international legal norms. The question becomes, therefore, not whether violations exist, but rather, what should the international community do to protect civilians living in occupied territories? The answer must be framed in the abstract. The practical problems are profound and obvious. Nevertheless, signatories to the Fourth Geneva Convention have a contractual obligation to “undertake to respect and to ensure respect for the present Convention in all circumstances.” A Contracting Party must not only be in compliance with the Convention, but must also take measures, in some cases punitive, to “ensure” that other state actors respect provisions of the Convention. Relevant to this discussion is “any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention.” In Article 147 “grave breaches” are defined as acts committed against persons or property protected under the Convention, including unlawful deportation or transfer or unlawful confinement of a protected person, willfully depriving a protected person of the right to fair and regular trial prescribed in the present Convention, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. Further, the Convention requires that Contracting Parties be willing, once a prima facie case has been established, to bring those found guilty of such breaches before its own courts or the courts of another Contracting Party.
In 1990, the United Nations Security Council voted unanimously in favor of Resolution 681, which calls for the Government of Israel to “accept the de jure applicability of the Fourth Geneva Convention” with regard to territories occupied by Israel since 1967. Moreover, it calls on High Contracting Parties to the Convention to “ensure respect” by Israel of the provisions of the Convention, “in accordance with Article 1 thereof.” More recent developments in the United Nations ostensibly signal some positive movement on the question of Convention enforcement in the Occupied Territories. Beginning in April 1997, the United Nations General Assembly passed a series of resolutions concerning the applicability of the Fourth Geneva Convention in the Occupied Territories. The final resolution, A/ES-10/L.5/Rev.1, passed by the General Assembly on February 8, 1999, recommended that the High Contracting Parties convene a conference on July 15, 1999 to address measures for enforcement of the Convention in the Occupied Palestinian Territories, including Jerusalem. [11]
At first glance, this would appear to be a positive move, as it provides an international forum for discussing the mechanisms needed to insure Israeli compliance with Convention provisions. However, there have since been some worrying developments. The responsibility for the conference organization has been left to the Swiss government, with arrangements left unclear as to who — the UN or the Swiss — is responsible for issuing the invitations to High Contracting Parties. Political factors may also impede or influence the proceedings. In an initial meeting of “experts” to discuss the General Assembly resolution convened by the Swiss in October 1998, the focus was on encouraging Israeli and Palestinian compliance with the Convention, rather than the Article 1 obligations of the High Contracting Parties, as intended by the UN resolutions. That said, the importance of the July conference is clear. It will mark an unprecedented initiative to ensure compliance of the Fourth Geneva Convention in a specific case. The conference result will likely set a precedent that will either promote compliance and enforcement of the Convention or serve to undermine it.
While the challenges presented by this task are daunting, the responsibilities of the High Contracting Parties, as delineated in the aforementioned articles, are clear. Signatories to the Fourth Geneva Convention are obliged to undertake all legitimate state actions to insure that Israel is in compliance with its provisions concerning the Occupied Territories. Documented Israeli policies in the Occupied Territories, including forced population transfers, land confiscation, settlement in the Occupied Territory and demolition and sealing of houses, do indeed constitute “grave breaches” of the Convention and, in certain instances, violations of both the Hague Regulations [12] and human rights law. Accordingly, parties to the Convention, as well as the wider international community, are not only morally compelled, but are legally obligated to insure that those responsible for such acts are held accountable. Unrealistic? Perhaps. The alternative, however, can be found in the debris of the Dayton and Israeli-Palestinian peace accords.
Endnotes
[1] See discussion of this in Anne Marie Slaughter’s “Pushing the Limits of Liberal Peace: Ethnic Conflict and the Ideal Polity” in David Wippman, ed., International Law and Ethnic Conflict (Ithaca, NY: Cornell University Press, 1998).
[2] The Fourth Geneva Convention is a case in point. Compliance with the Convention is, in principle, “ensured” by the Contracting Parties. In practice, except in those cases where national security interests can clearly be identified, the international community is reluctant to impose punitive measures.
[3] It should be noted that the 1998 Belfast Agreement in Northern Ireland is a recent case in which it is clear that international law did inform the process, and where questions of competing self-determination claims and international human rights norms were addressed. However, the Northern Irish case is unique in this regard.
[4] The Agreed Minutes states: “The withdrawal of the military government will not prevent Israel from exercising the powers and responsibilities not transferred to the Council.”
[5] See a paper issued by the Israeli Foreign Ministry, “Israel’s Settlements: Their Conformity with International Law,” December 1996, point 3.
[6] Ibid.
[7] Ibid.
[8] See policy paper issued by LAW, “Apartheid, Bantustans, Cantonization — The ABC of Oslo,” undated.
[9] Emma Playfair, “Playing on Principle,” in Emma Playfair, ed., International Law and the Administration of Occupied Territories (Oxford: Oxford University Press, 1992).
[10] Ibid., p 238.
[11] Unsurprisingly, Israel has rejected the resolutions and has stated that it will not attend the proceedings. As Israel’s attendance at the conference is not required, it is unlikely this will affect the proceedings.
[12] The Hague Regulations are part of international humanitarian law. What is important to note, however, is that these Regulations have been viewed by the international community, including Israel, as international customary law.
