The
International Laws
of Belligerent Occupation
By
Francis
A. Boyle
Professor of International Law,
University of Illinois
TFF
associate
May 18, 2004
Belligerent occupation is governed by The Hague
Regulations of 1907, as well as by the Fourth Geneva
Convention of 1949, and the customary laws of belligerent
occupation. Security Council Resolution 1322 (2000),
paragraph 3 continued: "Calls upon Israel, the occupying
Power, to abide scrupulously by its legal obligations and
its responsibilities under the Fourth Geneva Convention
relative to the Protection of Civilian Persons in a Time
of War of 12 August 1949;..." Again, the Security Council
vote was 14 to 0, becoming obligatory international
law.
The Fourth Geneva Convention applies to the West Bank,
to the Gaza Strip, and to the entire City of Jerusalem,
in order to protect the Palestinians living there. The
Palestinian People living in this Palestinian Land are
"protected persons" within the meaning of the Fourth
Geneva Convention. All of their rights are sacred under
international law.
There are 149 substantive articles of the Fourth
Geneva Convention that protect the rights of every one of
these Palestinians living in occupied Palestine. The
Israeli Government is currently violating, and has since
1967 been violating, almost each and every one of these
sacred rights of the Palestinian People recognized by the
Fourth Geneva Convention. Indeed, violations of the
Fourth Geneva Convention are war crimes.
So this is not a symmetrical situation. As matters of
fact and of law, the gross and repeated violations of
Palestinian rights by the Israeli army and Israeli
settlers living illegally in occupied Palestine
constitute war crimes. Conversely, the Palestinian People
are defending themselves and their Land and their Homes
against Israeli war crimes and Israeli war criminals,
both military and civilian.
The U.N. Human Rights
Commission
Indeed, it is far more serious than that. On 19
October 2000 a Special Session of the U.N. Commission on
Human Rights adopted a Resolution set forth in U.N.
Document E/CN.4/S-5/L.2/Rev. 1, "Condemning the
provocative visit to al Aqsa Haram Sharif on 28 September
2000 by Ariel Sharon, the Likud party leader, which
triggered the tragic events that followed in occupied
East Jerusalem and the other occupied Palestinian
territories, resulting in a high number of deaths and
injuries among Palestinian civilians." The U.N. Human
Rights Commission then said it was "[g]ravely
concerned" about several different types of atrocities
inflicted by Israel upon the Palestinian People, which it
denominated "war crimes, flagrant violations of
international humanitarian law and crimes against
humanity."
In operative paragraph 1 of its 19 October 2000
Resolution, the U.N. Human Rights Commission then:
"Strongly condemns the disproportionate and
indiscriminate use of force in violation of international
humanitarian law by the Israeli occupying Power against
innocent and unarmed Palestinian civilians...including
many children, in the occupied territories, which
constitutes a war crime and a crime against humanity;..."
And in paragraph 5 of its 19 October 2000 Resolution, the
U.N. Human Rights Commission: "Also affirms that the
deliberate and systematic killing of civilians and
children by the Israeli occupying authorities constitutes
a flagrant and grave violation of the right to life and
also constitutes a crime against humanity;..." Article 68
of the United Nations Charter had expressly required the
U.N.'s Economic and Social Council to "set up" this
Commission "for the promotion of human rights."
Israel's War Crimes against
Palestinians
We all have a general idea of what a war crime is, so
I am not going to elaborate upon that term here. But
there are different degrees of heinousness for war
crimes. In particular are the more serious war crimes
denominated "grave breaches" of the Fourth Geneva
Convention. Since the start of the Al Aqsa Intifada, the
world has seen those inflicted every day by Israel
against the Palestinian People living in occupied
Palestine: e.g., wilful killing of Palestinian civilians
by the Israeli army and Israel's illegal paramilitary
settlers. These Israeli "grave breaches" of the Fourth
Geneva Convention mandate universal prosecution for their
perpetrators, whether military or civilian, as well as
prosecution for their commanders, whether military or
civilian, including Israel's political leaders.
Israel's Crimes Against
Humanity against Palestinians
But I want to focus for a moment on Israel's "crime
against humanity" against the Palestinian People &emdash;
as determined by the U.N. Human Rights Commission itself,
set up pursuant to the requirements of the United Nations
Charter. What is a "crime against humanity"? This concept
goes all the way back to the Nuremberg Charter of 1945
for the trial of the major Nazi war criminals. And in the
Nuremberg Charter of 1945, drafted by the United States
Government, there was created and inserted a new type of
international crime specifically intended to deal with
the Nazi persecution of the Jewish People.
The paradigmatic example of a "crime against humanity"
is what Hitler and the Nazis did to the Jewish People.
This is where the concept of crime against humanity came
from. And this is what the U.N. Human Rights Commission
determined that Israel is currently doing to the
Palestinian People: Crimes against humanity. Legally,
just like what Hitler and the Nazis did to the Jews.
The Precursor to
Genocide
Moreover, a crime against
humanity is the direct historical and legal precursor to
the international crime of genocide as defined by the
1948 Convention on the Prevention and Punishment of the
Crime of Genocide. The theory here was that what Hitler
and the Nazis did to the Jewish People required a special
international treaty that would codify and universalise
the Nuremberg concept of "crime against humanity." And
that treaty ultimately became the 1948 Genocide
Convention.
In fairness, you will note that
the U.N. Human Rights Commission did not go so far as to
condemn Israel for committing genocide against the
Palestinian People. But it has condemned Israel for
committing crimes against humanity, which is the direct
precursor to genocide. And I submit that if something is
not done quite soon by the American People and the
International Community to stop Israeli war crimes and
crimes against humanity against the Palestinian People,
it could very well degenerate into genocide, if Israel is
not there already. And in this regard, Israeli Prime
Minister Ariel Sharon is what international lawyers call
a genocidaire&emdash;one who has already committed
genocide in the past.
Francis A. Boyle is a professor
of international law at the University of Chicago and a
Defence Lawyer at the International Court of Justice. He
received his Master's Degree and PhD in Political
Science, as well as his Doctor of Law from Harvard
University. He is the author of numerous books including,
The Future of International Law and American Foreign
Policy, World Politics and International Law, Defending
Civil Resistance Under International Law, and Palestine,
Palestinians, and International Law.
Copyright: Francis
Boyle
©
TFF & the author 2004
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