On 5 December 2001, a conference of High Contracting Parties to the Fourth Geneva Convention concerning the application of international humanitarian law in the occupied Palestinian territories, including East Jerusalem, took place in Geneva.
3. For background, the most recent histories are Morris, B., Righteous Victims: A History of the Zionist Arab Conflict 1881–1999 (London, John Murray 2000);Sayigh, Y., Armed Struggle and the Search for State: The Palestinian National Struggle 1949–1993 (Oxford, OUP 1999), and Shlaim, A., The Iron Wall: Israel and the Arab World (London, Allen Lane 2000).
4. 75 UNTS 297 (1950).
5. SC Doc. 22472 of 9 April 1991.
6. See Gasser, H.-P., ‘Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations’, in Fox, H. and Meyer, M.A., eds., Armed Conflict and the New Law Volume II; Ensuring Compliance (London, BIICL 1993) at p. 43.
7. Under the ‘Uniting for Peace’ resolution (GA Res. 377(V)), an emergency special session can be convened within 24 hours. The tenth special session was convened upon the request of the Arab Group of States, following the beginning of construction of a new settlement at Har Homa/Jabal Abu Ghneim and the failure of the Security Council, due to the US veto, to adopt a resolution calling on Israel to cease building.
8. Starting with GA Res. ES-10/3 of 15 July 1997. Resolution ES-10/3 requested the Secretary-General to present a report on the matter within three months. The Secretary-General then requested Switzerland, as depositary, to provide him with the necessary information. Switzerland duly circulated a note verbale to the High Contracting Parties to the Convention, requesting their views. Most responses received were broadly in favour of the convening of a conference. See the Report of the Secretary-General submitted in accordance with GA Res. ES-10/3, UN Docs. A/ES-10/16, 14 October 1997, and A/ES-10/16/Add.1, 10 November 1997. GA Res. ES-10/4 of 13 November 1997 consequently reiterated the General Assembly's recommendation and requested Switzerland to undertake the necessary steps, including the convening of a meeting of experts, to follow up on the recommendation, with a target date not later than the end of February 1998. GA Res. ES-10/5 of 17 March 1998 extended the target date for the convening of the meeting of experts until the end of April 1998. The Expert Meeting on the Fourth Geneva Convention was eventually held in Geneva on 27–28 October 1998.
9. By a vote of 115 in favour, two against and five abstentions.
10. Statement, Conference of High Contracting Parties to the Fourth Geneva Convention, Geneva, 15 July 1999.
11. For discussion and analysis, see Watson, G.R., The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford, OUP 2000).
12. See Agha, H. and Malley, R., ‘Camp David: The Tragedy of Errors’, New York Review of Books (9 08 2001); Morris, B., ‘Camp David and After: An Exchange (1. An Interview with Ehud Barak)’, New York Review of Books (13 06 2002); and Agha, H. and Malley, R., ‘Camp David and After: An Exchange (2. A Reply to Ehud Barak)’, New York Review of Books (13 06 2002).
13. Most of the other non-attending states did not have permanent missions in Geneva.
14. C. David Welsh, Assistant Secretary for International Organisation Affairs, US Department of State, Testimony Before the House International Relations Committee, Washington, DC, 14 July 1999. Available at <http://www.state.gov/www/policy_remarks/1999/990714_welsh_un-israel.html> (visited 11 December 2001).
15. He cited Arts. 12 (conciliation procedure) and 149 (enquiry procedure).
16. As were Australia's. See its response to the Secretary-General's note verbale of 14 May 1997, in which Australia stated that it had abstained on GA Res. ES–10/2 because it did not consider it would advance the Middle East peace process: Report of the Secretary-General submitted in accordance with GA Res. ES–10/2, UN Doc. A/ES–10/6,26 June 1997. See also United Nations General Assembly 54th Session, Item 43: the Situation in the Middle East, Statement by HE Ms Penny Wensley, Ambassador and Permanent Representative, 30 November 1999, which stated that Australia was ‘concerned about the dangers of politicisation of one of the most effective humanitarian instruments the international community has been able to devise’.
17. Israel's reaction to the convening of the High Contracting Parties to the Fourth Geneva Convention (Communicated by the Foreign Ministry Spokesperson, 5 December 2001). Available on <http://www.israel-mfa.gov.il/mfa/go.asp?MFAH0kv10> (visited 11 December 2001).
18. For a full examination of the official Israeli view, see Roberts, A., ‘Prolonged Military Occupation: The Israeli Occupied Territories 1967–1988’, in Playfair, E., ed., International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (Oxford, Clarendon Press 1992) at pp. 44–49.
19. Shamgar, M., ‘The Observance of International Law in the Administered Territories’, 1 Israel YB HR (1971) p. 262. See also Blum, Y., ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, 3 Israel LR (1968) p. 279.
20. Ibid., at p. 263.
21. Ibid., pp. 263–265.
22. Regulations Respecting the Laws and Customs of War on Land annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, UKTS 9(1910). The Convention is widely viewed as being reflective of customary international law. See, in particular, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 22(1948) at 497. Indeed, Israel not being a party to the Convention, its provisions could only apply as part of customary law.
23. See Ayub v. Minister of Defence, 33(2) Piskei Din 113 (Supreme Court of Israel), summarised and partly translated in 9 Israel YB HR (1979) p. 337.
24. Op. cit n. 19, at p. 266.
25. For commentary, see Roberts and other contributors in Playfair, op. cit. n. 18; Dinstein, Y., ‘The International law of Belligerent Occupation and Human Rights’, 8 Israel YB HR (1978) and Bar-Yaacov, N., ‘The Applicability of the Laws of War to ludea and Samaria (the West Bank) and the Gaza Strip’, 24 Israel LR (1990) p. 5.
26. Loc. cit. n. 18, at p. 52.
27. See for example, letter from State Department Legal Adviser concerning the legality of Israeli settlements in the Occupied Territories, 21 April 1978, reproduced in 17 ILM (1978) p. 777.
28. Although it might be asked, particularly in the light of recent events, whether there has in fact been a ‘general close of military operations’. Roberts, however, considers the ‘one year after’ provision as having been effectively rescinded. See loc. cit. n. 18, at p. 55.
29. See Art. 4 (definition of protected persons), GC IV.
30. Although Israel must be given credit for having admitted that it is in occupation of the West Bank and the Gaza Trip. The tendency in the post-war period has been for occupying states to deny they are in occupation. See Benvenisti, E., The International Law of Occupation (Princeton N.J., Princeton University Press 1993) at p. 107.
31. Conference of High Contracting Parties to the Fourth Geneva Convention, Geneva, 5 December 2001, Declaration (paragraph references omitted).
32. Ibid., para. 12.
33. See for example, Amnesty International, ‘Israeli: Respect of Fourth Geneva Convention must be ensured by High Contracting parties meeting in Geneva’, AI Index MDE 15/108/2001,4 December 2001: ‘Reaffirmation of the principles defined for the protection of civilian populations in time of war is an important move but it is not enough’.
34. 1115 UNTS 331 (1969).
35. Ibid., Art. 31(1).
36. Aust, A., Modern Treaty Law and Practice (Cambridge, CUP 2000) p. 191. See also, Yasseen, M. Kamil, ‘L'interprétation des traités d'après la convention de Vienne sur le droit des traités’, 151 Recueil des cours (1976-III) pp. 1 at p. 45. Yasseen states that it is unnecessary that the interpretative agreement take the same form as the treaty; it can be in simplified form, by an exchange of notes, or by concordant oral declarations.
37. Sinclair, I., The Vienna Convention on the Law of Treaties, 2nd edn. (Manchester, MUP 1984) p. 137. For a possible explanation for this, see Yasseen, ibid., at p. 44.
38. See Sinclair, ibid., p. 136; McNair, Lord, The Law of Treaties (Oxford, Clarendon Press 1961) pp. 427–429; Reuter, P., Introduction to the Law of Treaties, transl. Mico, J. and Haggenmacher, P., 2nd edn. (London, KeganPaul 1995) pp. 96–97; and Elias, T.O., The Modern Law of Treaties (Dobbs Ferry, Oceana 1974) pp. 75–76.
39. Loc. cit n. 36, at p. 46.
40. Yasseen, loc. cit. n. 36, p. 48.
41. See Yasseen, loc. cit. n. 36 pp. 48–52; Sinclair, op. cit. n. 37, at pp. 137–38; Elias, op. cit n. 38, at p. 76; and Aust, op. cit. n. 36, at p. 195. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. (1971) pp. 16 at 22; and the United States-United Kingdom Arbitration concerning Heathrow Airport User Charges, 102 ILR (1992) 216, at p. 353, in which the tribunal referred to ‘consensual subsequent practice’ by the parties.
42. Yasseen, loc. cit. n. 36 at p. 48.
43. The same view was taken by Gasser when discussing the Security Council's 1990 proposal. See Gasser, loc. cit n. 4, at p. 43.
44. See Yasseen, loc. cit. n. 36, pp. 52 and 79–80. NcNair, writing before the adoption of the Vienna Convention, would seem to agree: see op. cit. n. 38, at p. 431. For McNair, such practice, although relevant evidence, cannot be conclusive. Aust, however, does not include subsequent practice in his list of other supplementary means of interpretation: see op. cit. n. 36, at pp. 200–201.
45. Fitzmaurice, G.G., ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’, 28 BYIL (1951) p. 1; Fitzmaurice, G., ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles, and Sources of Law’, 30 BYIL (1953) p. 1, and Fitzmaurice, G., ‘The Law and Procedure of the International Court of Justice, 1951–54: Treaty Interpretation and Other Treaty Points’, 34 BYIL (1957) p. 203. The articles, of course, predate the Vienna Convention.
46. International Status of South-West Africa, ICJ Rep. (1950) p. 128, at pp. 135–136.
47. Fitzmaurice (1957) op. cit n. 47, at p. 223.
49. See in particular, Akehurst, M., ‘Custom as a Source of International Law’, 47 BYIL (1974–1975) pp. 1 at pp. 4–9.
50. Their interest was solely a legal one, that of ensuring that other parties apply the Convention.
51. In respect of the USA, see supra n. 27. Australia has on a number of occasions voted for General Assembly resolutions reaffirming the applicability of the Fourth Geneva Convention to the Occupied Territories.
52. Pictet, J., ed., Commentary on the Geneva Conventions of 12 August 1949 (Geneva, International Committee of the Red Cross 1952–1959) Vol. I, at p. 226.
53. See Condorelli, L. and de Chazournes, L. Boisson, ‘Quelques remarques á propos de l'obli-gation des Etats de “respecter et faire respecter” le droit international humanitaire “en toutes circon-stances”’, in Swinarski, Ch., ed., Studies and Essays on International Humanitarian and Red Cross Principles in Honour of Jean Pictet (GenevaICRC 1984); Levrat, N., ‘Les conséquences de l'engage-ment pris par les Hautes parties contractantes de ‘fair respecter’ les Conventions humanitaires’, in Kalshoven, F. and Sandoz, Y., eds., Implementation of International Humanitarian Law (Dordrecht, Nijhoff 1989); H-P. Gasser, loc. cit. n. 4; Palwankar, U., ‘Measures Available to States for Fulfilling Their Obligation to Ensure Respect for International Humanitarian Law’, IRRC No. 298 (1994) p. 9; and de Chazournes, L. Boisson and Condorelli, Luigi, ‘Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests’, IRRC No. 837 (2000) p. 67.
54. Roberts, A., ‘The Laws of War: Problems of Implementation in Contemporary Conflicts’, in Law in Humanitarian Crises (European Commission, Luxembourg, OOPEC 1995) at pp. 31–32. It may, however, be doubted whether the travaux préparatoires of a multilateral treaty negotiated between 58 states over 50 years ago should prevail over the subsequent practice of the far larger number of parties to the treaty.
55. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. (1986) p. 14.
56. Ibid., at p. 104. The Court also considered common Article 3 to reflect customary international law.
57. Ibid., at p. 120.
58. Gasser, loc. cit n. 4, at p. 31.
59. Gasser, ibid., p. 32.
60. It is noteworthy, for example, that in 1998, when suspending flights by Yugoslav carriers to the United Kingdom in response to the activities of the Yugoslav security forces in Kosovo, the UK did not provide any legal justification for doing so without giving the twelve months notice required under the 1959 UK/Yugoslavia Air Services Agreement. The decision to do so was simply said to be on moral and political grounds. See letter of Mr Robin Cook, Secretary of State for Foreign and Commonwealth Affairs, to the Chairman of the House of Commons Foreign Affairs Committee, dated 30 November 1998, reproduced in Marston, G., ‘United Kingdom Materials on International Law 1999’, 70 BYIL (1999) pp. 368 at 555–556. The United Kingdom, as a party to the Geneva Conventions, has an obligation to ‘ensure respect’ for Common Article 3, which is applicable in internal armed conflicts.
61. See e.g., International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, reprinted in 41 AJIL (1947) pp. 172 at 216.
62. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3 (1979).
63. Art. 93.
64. Nor has there been any attempt to use it to do so. What has been notable is the absence of any mention of the provision.
65. In particular, in this context, neither Israel nor the USA are parties to Additional Protocol I.
66. Conference of the High Contracting Parties to the Fourth Geneva Convention, Geneva, 5 December 2001, Opening Statement by the Chair read by Ambassador Peter Maurer (emphasis and underlining in the original).
67. Although the term itself is not used: see Arts. 150, 152 and 156–159.
68. For commentary, see Aust, op. cit. n. 36, at pp. 261–274.
69. ‘1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States, comprise in particular:
(a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary;
(b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and the States entitled to become parties to the treaty;
(c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it;
(d) examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question;
(e) informing the parties and the States entitled to become parties to the treaty of the acts, notifications and communications relating to the treaty;
(f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited;
(g) registering the treaty with the Secretariat of the United Nations;
(h) performing the functions specified in other provisions of the present Convention.’
70. H-P. Gasser, loc. cit n. 4, at p. 43.
71. In its capacity of depositary of the Geneva Conventions and their Additional Protocols, Switzerland had previously convened the 1993 International Conference for the Protection of War Victims and the 1995 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims. See Meron, Th., ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, 90 AJIL (1996) pp. 238 at 244.
72. See p. 391 above.
73. And, on that level, it might be noted that the Conference was billed as being one ‘of High Contracting Parties’, not ‘of the High Contracting Parties’, to the Convention.
1 © M. Happold, 2002.
2. Lecturer in Law, University of Nottingham. I am grateful to Robert Cryer for his comments on a draft of this article. The usual disclaimer applies.
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