August 24, 2004
The government should
"thoroughly examine" the possibility of formally applying the Fourth
Geneva Convention - which governs the treatment of civilians in occupied
territory - to the territories, a Justice Ministry legal team has
recommended, though it said that the international treaty must be applied
in a way that maintains Israel's right to assume security responsibility
in those areas.
The team was appointed by Attorney General Menachem Mazuz to examine the implications of the International Court of Justice's July 9 ruling on the separation fence.
If the team's recommendation is accepted, it would represent a U-turn in the consistent policy of all previous Israeli governments, which has been not to apply the Geneva Convention to the West Bank and Gaza. Israel's position is that there was no recognized sovereign in these areas before 1967, so they are not "occupied territory" as defined in the convention.
Israel has agreed to apply the convention's humanitarian provisions de facto, but has always stressed that this does not constitute formal acceptance of the convention's applicability. In particular, Israel rejects the claim that the settlements violate the convention, which forbids the transfer of civilians into occupied territory.
The Palestinians and their international supporters oppose Israel's position, and have sponsored numerous UN resolutions stating that the treaty does apply to the territories, and is binding on Israel. The International Court of Justice accepted this position in its advisory opinion on the fence.
The Justice Ministry team, headed by Deputy Attorney General Shavit Mattias, suggested that the government change its approach to the convention, to UN rapporteurs in the territories, and to the International Court. It argued that Israeli officials should refrain from attacking the court, and that the fence's route must demonstrate "sensitivity" to the court's ruling.
It also said that in light of the court's ruling, Israel should reconsider the way in which the army and other Israeli agencies operate in the territories. The ruling could serve as a basis for anti-Israel activity in international forums, and could even lead to sanctions, it warned.
The team recommended building the fence as close as possible to the Green Line, taking into account security needs and the need to minimize harm to Palestinians. Where settlements abut the Green Line, it said, the fence should lie as close as possible to the outermost houses of these settlements. However, the Justice Ministry legal team declined to make recommendations about the fence's route in Jerusalem.
It also recommended adjusting the "permit regime" instituted for Palestinians living near the fence, in accordance with the principles of international humanitarian law.
The defense establishment is scheduled to present the cabinet in early September with the revised route of the fence between Elkana and Jerusalem. The new route was necessitated by a High Court of Justice ruling on June 30 that disallowed a section of the fence northwest of Jerusalem due to the harm it caused local residents.
The International Court of Justice ruling on July 9 said the fence cannot be built in "occupied Palestinian territory," meaning anywhere over the Green Line, and that Israel must dismantle existing sections and compensate the Palestinians. It also ruled that the occupation and the settlements violate international law.
The UN General Assembly adopted this opinion on July 20, and is expected to discuss the issue again in September, when the Palestinians are likely to request sanctions against Israel. Should the Americans, as expected, veto this idea in the Security Council, the Palestinians will ask the General Assembly to recommend that member states impose sanctions.