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Hijacking the Laws of Occupation Amb. Alan Baker (JCPA via Mosaic)

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Sept. 3, 2017

  • There are 40 or more ongoing conflict and occupation situations throughout the world, including in Iraq, Afghanistan, Western Sahara, East Timor, East Congo, Nagorno-Karabakh, Northern Cyprus, and the Crimea.
  • Curiously, these situations, which involve extensive transfer of people in order to settle in the occupied territory, are rarely seen by the international community as “occupations.” Nor are the respective parties involved described as “belligerent occupants,” “occupying powers,” or “settlers.”
  • From the extent and volume of international attention directed toward Israel and the excessive number of UN resolutions, one might be led to assume that Israel is considered within the international community to be the only “occupying power.”
  • The accepted rules of occupation are overly general and do not take into consideration the often unique political, legal, and historical status of the territory in dispute, as is the case regarding Israel.
  • The language of occupation law has been politicized, and partisan political expressions such as “Occupied Palestinian Territories” have become common language by the UN and by such humanitarian organizations as the International Red Cross.
  • This terminology has no legal basis and prejudges ongoing, agreed-upon, and internationally-endorsed negotiation issues between Israel and the Palestinians. Their use by humanitarian organizations such as the International Red Cross is incompatible with its own constitutional principles of neutrality and impartiality.

The International Committee of the Red Cross (ICRC), the main arbiter of the Geneva Convention’s regulations, frequently describes the West Bank and even the Gaza Strip as “Occupied Palestinian Territories.” Yet, Alan Baker writes, this phrase—also used by the UN—wildly misapplies the laws the ICRC is tasked with protecting:

The classical rules of occupation are set out in the international law of armed conflict and specifically in the 1907 Hague Regulations and the 1949 Fourth Geneva Convention. . . . [T]he Hague Regulations define a territory as occupied when it comes “under the control of a hostile army.” The Fourth Geneva convention goes further and requires that the territory of a “High Contracting Party [i.e., a signatory of the Convention] comes under partial or total occupation.” . . .

[But] the sovereign status [of the West Bank and Gaza] is legally unclear or non-existent and as such cannot be seen as “territory of a High Contracting Party” as defined by the Fourth Geneva Convention. The legal questionability of Jordan’s pre-1967 sovereignty in the West Bank, as well as Egypt’s self-admitted non-sovereign military administration of the Gaza Strip, [cast doubt on] whether the classic and simplistic concept of belligerent occupation could be legally relevant and applicable to Israel’s unique situation in the territories.

It is well known that prior to 1967, Jordan’s annexation of, and claim to sovereignty in, the West Bank were not accepted in the international community, except for the UK and Pakistan. Jordan’s claim to east Jerusalem was not accepted even by the UK. . . .

Meanwhile, by contrast, the ICRC and the UN almost never use “occupation” or related terms to refer to the numerous textbook cases of military occupation across the globe. Baker concludes:

Thus, the use by the international community of the terms “belligerent occupation” and “occupied territory” almost exclusively to refer to Israel’s status in the territories has taken on a distinct politicized connotation that ignores the legal, historical, and political situation on the ground. The terms extend far beyond the simplistic rubrics foreseen in the definitions. . . .

This runs counter to the ICRC’s very basic fundamental principles of “impartiality, neutrality, and independence” as required and defined in the Preamble to the Statutes of the International Red Cross and Red Crescent Movement. The cumulative effect of such legally flawed assumptions in effect prejudges the central negotiating issue between Israel and the PLO—namely, the permanent status of the territories. That issue constitutes an agreed-upon negotiating issue pursuant to the 1993 Oslo Accords in which the Palestinians themselves agreed to negotiate the permanent status of the territory.

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