HAARETZ
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.