The Geneva Accord and International Humanitarian Law

[Dover]

A little history on the Geneva Accord:


Switzerland and the Geneva Accord:
Undermining the Rule of Law
The Geneva Conventions:

http://www.spj.org/gc-text1.asp?#49
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Palestinian Centre for Human Rights
November 13, 2003

The Palestinian Centre for Human Rights (PCHR) strongly denounces Switzerland’s involvement and endorsement of the so-called “Geneva Accord.”<1> PCHR asserts that Switzerland’s support of the Geneva Accord contradicts its duties both as the depository of the Geneva Conventions <2> and as a High Contracting Party to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (Fourth Geneva Convention).

The Geneva Accord and International Humanitarian Law

The “Geneva Accord” an unofficial “peace proposal” drafted and endorsed by a group of Palestinian leaders and Israelis, including former members of the Israeli government,<3> with the sponsorship of the Swiss Foreign Ministry, was released in October 2003 and promoted as “the realization of the permanent status peace component envisaged in…the Quartet Roadmap process.”<4> The document is intended to give a detailed and comprehensive over-view of the “compromises” that are required <5> for “reconciliation between Palestinians and Israelis” <6> to occur. The Geneva Accord has been marketed as a “breakthrough” in peace negotiations. However, PCHR asserts that the document’s “recommendations” undermine the fundamental individual and collective rights of Palestinians and undermine the rule of law by circumventing Israel’s obligations under international human rights and humanitarian law, specifically the Fourth Geneva Convention.<7>

In direct contravention of the spirit and provisions of international humanitarian law, specifically the Fourth Geneva Convention , the Geneva Accord does not require Israel to withdraw from all lands occupied since 1967, including relinquishing all land confiscated for settlement use and the removal of Jewish settlers. Furthermore, the model of the future Palestinian “state” that the Geneva Accord envisions allows for the continued violation of the Fourth Geneva Convention in that it negates the fundamental right of Palestinians to self-determination and the right to self-defense. <8> The Accord further effectively rescinds the right of return of approximately 5 million Palestinian refugees by affording the government of Israel the ability to veto any and all requests from Palestinian refugees to return to his or her home in what is now the territory of Israel. <9>

Furthermore, the Geneva Accord not only fails to hold Israel accountable for the widespread and systematic war crimes it has continued to perpetrate within the Occupied Palestinian Territories (OPTs), but it effectively legitimizes Israel's colonization and confiscation of Palestinian territory and allows for Israel's ongoing suppression of the Palestinians' right of self determination through the use of belligerent force to become a permanent arrangement under the pretext of a “legal” final status agreement.

Switzerland’s Role in Undermining International Humanitarian Law

Switzerland has specific responsibilities as both a High Contracting Party to the Fourth Geneva Convention and as the depository of the Geneva Conventions. As a High Contracting Party Switzerland is under a clear obligation to “ensure respect for the convention in all circumstances” (article 1), and specifically to “search for and prosecute those responsible for grave breaches of the convention (article 146). The depository of the Geneva Conventions has particular responsibilities, including administrative responsibilities to (1) register the treaties with the United Nations, (2) arrange for the undertaking and completion of official translations of the treaties, and (3) transmit official translations and certified copies of the treaties to High Contracting Parties and “Parties to conflict.” <10>

Switzerland has consistently failed to fulfill its responsibilities as both the depository of the Geneva Conventions and a High Contracting Party to the Fourth Geneva Convention, including its legal obligation to hold Israel accountable for the gross violations of the Fourth Geneva Convention routinely committed in the OPTs. This total failure to hold Israel accountable for its actions was most clearly illustrated at the two conferences of the High Contracting Parties to the Fourth Geneva Convention that took place in Geneva on 15 July 1999 and again on 5 December 2001. Both of these conferences were convened in accordance with U.N. General Assembly resolutions calling for a conference to discuss practical enforcement measures to compel Israel to cease violations of the Fourth Geneva Convention in the OPTs. Both conferences failed in their principle objective. These conferences also demonstrated Switzerland’s unwillingness to use its position of leadership as the depository to ensure that meaningful enforcement mechanisms would be adopted; in fact, the process and manner by which Switzerland organized and conducted the conferences indicates a tendency to undermine the purpose of the conferences. <11>

PCHR maintains that the support for the Geneva Accord by Switzerland conflicts with its role as the depository of the Geneva Conventions, and its de jure obligation to enforce the provisions of the Fourth Geneva Convention. PCHR asserts that such support represents a degenerative shift of policy within the government of Switzerland from complacent acceptance of Israel's illegal acquisition of territory, population transfers and other widespread and systematic violations of Palestinians' rights by the Israeli government in the OPTs, to an actual endorsement and process of legitimization for these methods, and, as such, constitutes an active breach of its obligation to respect the convention. <12> Furthermore, in accordance with the principle of pacta sunt servanda as manifest in article 26 of the Vienna Convention on the Law of Treaties,<13> PCHR argues that Switzerland’s distinct status as the depository of the Geneva Conventions entails a responsibility to set reputable standards of state practice that uphold and strengthen international humanitarian law. As such, the support and endorsement of the depository of the Geneva Conventions, and High Contracting Party of the Fourth Geneva Convention, for a proposal that so blatantly contradicts with the provisions and spirit of the Fourth Geneva Convention, and the fundamental principles of international humanitarian law, only serves to seriously undermine and erode the standards contained within the law of armed conflict; and serves to further encourages violations of the Convention by Israel.

PCHR insists that as the depository and a High Contracting Party to the Fourth Geneva Convention, Switzerland has a clear obligation to ensure strict enforcement of international humanitarian law in the OPTs, in cooperation with other governments, including as a fundamental basis of any peace negotiations. Hence, Switzerland’s support for the Geneva Accord, an initiative that effectively ignores the basic concepts of international humanitarian law, contradicts with these obligations. In doing so, Switzerland’s efforts have served to undermine the rule of law by encouraging state parties to the Fourth Geneva Conventions to ignore their contractual obligation to ensure respect for the Convention.

http://www.globalpolicy.org/security/issues/israel-palestine/2003/1113undermining.htm


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News Service: 135/99
AI INDEX: MDE 15/47/99
15 July 1999



ISRAEL

Fourth Geneva Convention meeting:
an abdication of responsibility

Amnesty International is appalled by a 10 minute meeting of High Contracting Parties to the Geneva Conventions, convened today in Geneva, which failed to consider enforcement measures to ensure that Israel respect its obligations under the Fourth Geneva Convention.

The High Contracting Parties have only met to decide to defer their responsibilities. It is a supreme irony that, on the 50th anniversary of the Geneva Conventions, a conference that was set up to bring back to the limelight the plight of the protected population in the Occupied Territories lasts only 10 minutes. Today marks a scandalously missed opportunity to reaffirm international humanitarian law.

Resolution ES-10/6, adopted by almost all members of the UN General Assembly on 8 February 1999, called for the convening of this meeting of High Contracting Parties to consider enforcement measures. At todays meeting the High Contracting Parties failed to demonstrate a serious commitment to ensure protection for people in the territories occupied by Israel in particular, and to ensure compliance with international humanitarian law in general.

Israel, as a High Contracting Party, has been violating the Fourth Geneva Convention for more than 30 years, when it carries out wilful killings extrajudicially, when it tortures or when it indiscriminately uses force, Amnesty International said. The High Contracting Parties themselves however have violated their obligation enshrined in Article 1 of the Convention, to ensure respect for the Fourth Geneva Convention.

Instead of studying ways to enforce compliance with the obligations of the Convention, the meeting was a simple procedural one and was concluded after 10 minutes. Even worse, it set no date for a substantive discussion and decisions on enforcement measures, confining itself to the postponement of the meeting sine die. The meeting will be reconvened only in the light of the developments in the humanitarian situation in the field.

If the resolution adopted by the General Assembly is not to remain simple lip service, it is imperative that the meeting of High Contracting Parties be reconvened before the end of the year, and that the question of enforcement measures be addressed in order to lead to concrete steps.


http://web.amnesty.org/library/Index/engMDE150471999

[Mnemosyne]

1. Principles of the Nuremberg Tribunal, 1950

http://deoxy.org/wc/wc-nurem.htm



No. 82
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations, 1950.

Introductory note: Under General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text below was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the Intemational Law Commission, 1950, Vol. II, pp. 374-378).

Authentic text: English Text published in Report of the International Law Commission Covering its Second Session, 5 June-29 Duly 1950, Document A/1316, pp. 11-14.

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.
Principle Vl
The crimes hereinafter set out are punishable as crimes under; international law:

1. Crimes against peace:
1. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
2. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
2. War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
3. Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.