[Elder Of Ziyon - Israel News] The ICRC again twists international law to damn Israel

Juan Pedro Schaerer, "head of delegation of the International Committee of the Red Cross in Israel and occupied territories," writes in the Jerusalem Post:

It is not the ICRC, but rather the facts on the ground that determine whether a territory is under occupation. The facts are such that the Israel Defense Forces established their presence in the West Bank and East Jerusalem in June 1967, and exerted their authority there in place of the Jordanian authorities who were no longer able to exert their own authority.

The West Bank and east Jerusalem were "actually placed under the authority" of the IDF in the sense of Article 42 of the Hague Regulations of 1907. In other words, the facts on the ground were such that they fell squarely into the definition of occupied territory, which is codified in Article 42, a provision that also reflects international customary law.

This has not changed in the 45 years that have past since the occupation of the West Bank, including east Jerusalem, was first established. Israel continues to effectively control this territory.

In addition, international humanitarian law does not require that the territory occupied by a foreign army must belong to a sovereign state. The purely factual criterion used is that a territory is considered occupied when it is actually placed under the authority of a hostile army – which is the case in the West Bank and east Jerusalem.

Since at this point Schaerer is only quoting the Hague Regulations, perhaps he should look at the title of the section that Article 42 falls under on the ICRC website:

SECTION III
MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE

While this isn't proof positive that the Hague Regulations do not apply to non-state entities, it is also proof that Schaerer's blanket statement is not as clear cut as he pretends. He gives no source for his assertion, and based on primary sources, his statement is only that - an assertion.
The Geneva Conventions sheds no additional light on this question, so as far as actual texts of international humanitarian law are concerned, Schaerer's statement is not supported at all.

The ICRC can interpret all it wants, but its interpretation is only that. To characterize it as definitive is deceptive, and that is what is happening here.

Regarding settlements, it is long established in international law that settlement activities by an occupying power in an occupied territory are unlawful.

Population transfers for the purpose of establishing settlements are forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory.

This is explicitly addressed in the Fourth Geneva Convention, for good reason. Such transfers are prohibited because they lead precisely to the demographic and other changes in the territory which occupation law was designed to prevent.

This is a flat-out lie.

I have many times dissected the text of Article 49 of the Geneva Conventions, and I have even dug up the travaux préparatoires that show that when the article was drafted not a word is said about transfer that is voluntary or even encouraged.

Indeed, international law writings, when discussing transfer of populations, are very careful to distinguish between voluntary and involuntary transfer.

Some transfers are said to be voluntary but are in fact involuntary. An example Egypt's expulsion of British subjects in November 1956. Egypt force them to sign an Arabic document where they stated that they were leaving of their own free will and relinquish any claims against Egypt. That is a case of involuntary transfer because the transferees were not given a choice - it was not voluntary.

The definition of voluntary transfer is very simple: "For the transfer to comply with human rights standards as developed, prospective transferees must have an option to remain in their homes if they prefer."

Nothing in any international law source insists that a nation forcibly stop its citizens from voluntarily moving, but that is apparently how Schaerer is purposefully misinterpreting Geneva.

Moreover, Schaerer characterizes the primary purpose of Article 49 as to "demographic and other changes in the territory which occupation law was designed to prevent." This is also a lie. All of the discussions recorded in the travaux préparatoires center on forced population transfer because of the obvious human rights issues that deportation and forced transfer entails, of forcibly uprooting people from their homes. Nobody said a word about demographic changes being an issue at least in that paragraph.

Thus, when the international community regards the Israeli settlements in the West Bank as unlawful, it does so simply because of that very prohibition, and not because of an opinion of the ICRC.

As I have shown, the source texts do not support Schaerer's interpretation. The ICRC might have some support for its position, but some legal scholars have proof for the opposite. That is why it is clearly, by definition, the ICRC's opinion.

This article proves the opposite of Schaerer's intention. By simply looking up the sources, we see that the ICRC is creating its own interpretation of international humanitarian law specifically to target Israel.

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Posted By Elder of Ziyon to Elder Of Ziyon - Israel News at 11/21/2013 10:00:00 AM