THE
REAL FOURTH GENEVA CONVENTION
by Robert Klein
Myth
vs. Fact
If
one were to attempt to extrapolate the contents of the Fourth
Geneva Convention from a condensation of every related comment
published or aired in the media and the internet over the past
decade, one would end up with a document that is almost entirely
unlike the actual text of the Convention. There is probably no
other international agreement which has been so utterly misquoted
and miscited in the service of political posturing. Even more
disturbing is the fact that all the misquotations and miscitations
go virtually unnoticed by the public. How did this situation arise?
The one universally disregarded article
The Fourth Geneva Convention (henceforth "the 4GC")
contains 159 articles of which 158 are diligently observed by
most governments. However, there is one article which it would
seem has never been implemented by any country --
Article 144:
The High Contracting Parties undertake, in time of peace as
in time of war, to disseminate the text of the present Convention
as widely as possible in their respective countries, and, in particular,
to include the study thereof in their programmes of military and,
if possible, civil instruction, so that the principles thereof
may become known to the entire population. (para. 1)
It is quite unfortunate that no such dissemination has taken place,
for the consequent ignorance of the contents of the Convention
enables unscrupulous spokespersons and cynical political pundits
to routinely attribute ideas to the 4GC which simply do not exist
within its text, ideas such as "illegal occupation",
"the right to oppose occupation", "illegal annexation",
and so forth. In the case of the Arab-Israeli conflict, the unfortunate
situation has arisen wherein Israel is erroneously accused in
both official forums as well as in the mass media of gross violations
of the Convention vis a vis the Palestinian Arabs, with reporters
and interviewers rarely if ever challenging the accusations. For
their part, Israeli spokespersons in responding to the many false
charges generally focus on one point, namely that the 4GC only
provides legal protection to civilians who reside in a territory
which has a recognized sovereign. Inasmuch as Judaea, Samaria,
and the Gaza Strip (henceforth "the Territories") were
never under any such sovereignty, the 4GC isn't applicable to
Israel's presence there. But while this technical loophole may
be absolutely legitimate, as a response it fails to address the
underlying accusation that Israel appears to shun international
standards of ethical military conduct. If the text of the 4GC
were disseminated properly as originally envisioned in Article
144, both supporters and detractors of Israel would understand
that the 4GC is not a document which Israel needs to sidestep
with technical loopholes. In fact, quite the opposite is true:
the 4GC is a legal instrument which allows countries which are
precisely in Israel's situation of confrontation with a hostile
civilian population to best insure their security according to
internationally recognized standards without in any way prejudicing
historical claims.
The legitimacy of being an Occupying Power
Despite the fact that Israel is not technically an "Occupying
Power" as defined by the 4GC, in practice Israel is in a
situation where issues addressed in the 4GC regarding Occupying
Powers become quite relevant. It therefore is worthwhile to explore
the Convention's attitude towards Occupying Powers and whatever
rights it may confer on both the occupier and the occupied. In
this context, perhaps the single greatest myth associated with
the 4GC is that it defines occupation as an essentially illegal
act which at best can be temporarily tolerated and at worst can
be considered in and of itself a type of war crime. By contrast,
the authors of the Geneva Conventions understood that war is a
reality of failed multi-lateral relations, and that occupation
is a reality of war. Neither are considered inherently illegal.
Consequently, the 4GC never uses language which condemns occupation,
nor does it ever even set a limit as to how long an occupation
may last. If this sounds surprising, consider the wording of Article
6:
In the case of occupied territory, the application of the
present Convention shall cease one year after the general close
of military operations; however, the Occupying Power shall be
bound, for the duration of the occupation, to the extent that
such Power exercises the functions of government in such territory,
by the provisions of the following Articles of the present Convention
1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
(para. 3)
Note that even one full year after the cessation of hostilities,
the 4GC does not call on the Occupying Power to withdraw back
to its original borders. If maintaining an occupation after the
general close of military operations were truly illegal, Article
6 would have been the appropriate place to say as much. Yet neither
Article 6 nor any other article in the 4GC ever sets conditions
on the duration of an occupation. This is not to say that no war
or occupation could ever be morally challenged, but only that
it is not within the purview of the 4GC to raise such issues.
In other words, the 4GC is not there to decide who is at fault
for starting a war, but only comes to ameliorate the conditions
of civilians who are likely to be victimized during a war. As
such, it turns out that an implicit assumption of the 4GC is that
occupation is a legitimate means of conducting war and defending
national security.
The right of an Occupying Power to impose restrictive
measures in the name of security
In addition to the legality of maintaining an occupation, it is
the right of Occupying Powers to employ restrictive measures in
order to insure the security of both soldiers and civilians. While
the full range of such measures is too broad to be reviewed in
this article, the four most salient and forceful measures are
presented below. According to the 4GC, Occupying Powers may:
1. imprison any civilian who causes minor harm to any military
property (Article 68)
2. execute any civilian who causes serious damage to military
property, who spies, or who causes the death of any person (Article
68)
3. place protected persons in internment camps if security needs
so demand (Article 42)
4. deport or transfer all or part of the civilian population if
security or military needs so demand (Article 49)
It is clear from these four restrictive measures that Occupying
Powers which abide by the 4GC have a right to security vis a vis
the civilians under their control, and that conversely, civilians
living under occupation do not enjoy a special right to attack
the occupation forces, and certainly not to attack the civilians
of the Occupying Power or to perpetrate other acts of terror.
In addition, even when the civilian population as a whole conducts
itself in a peaceful manner, overriding security concerns can
justify internment and even exile, actions which Israel has to
date only employed in the smallest measure and only when there
were manifest security considerations, and yet which have been
wrongly condemned as violations of international law by various
groups. All of the above measures should be readily available
to Israel given its extreme security problems.
Territorial and national claims
The 4GC makes no attempt to determine the justness of any territorial
or national claims, neither on behalf of the Occupying Power nor
on behalf of the protected persons living under occupation. Undoubtedly
the authors of the 4GC were well aware that throughout history
it has been quite common for military occupation to occur where
two nations are vying for a particular territory. The authors
wisely chose not to make any assumptions about whose claim is
stronger despite the temptation to side with the civilians living
under occupation, even when the territory itself is under internationally
recognized sovereignty. How much wiser was that decision in the
case of Israel where the occupied territory is disputed by several
parties and has never been under internationally recognized sovereignty.
The 4GC has one purpose only: to ameliorate the conditions of
civilian persons during wartime. Territorial claims are simply
not an issue in the 4GC.
Settlements
The issue of settlements is especially contentious because there
is a clause in the 4GC which can potentially be interpreted as
barring an Occupying Power from allowing its citizens to immigrate
to the occupied territory.
The last line of Article 49 reads:
The Occupying Power shall not deport or transfer parts of
its own civilian population into the territory it occupies.
Israel's detractors insist that Israel's allowing of its civilians
to immigrate to the Territories is tantamount to "transfer"
under Article 49. However, there are at least three distinct reasons
why the equation of "transfer of civilian population"
with "allowing citizens to immigrate" is not a viable
interpretation. First, "transfer" is almost always a
term which relates to forced movement. The voluntary movement
of individuals to any given territory is not at all well described
by the term "transfer". Second, it would have been trivial
for the authors of the 4GC to include a specific clause in Article
49 that Occupying Powers must prevent all immigration to the occupied
territory. That the authors did not explicitly do so strongly
suggests that the lack of such a clause was no oversight, and
that Article 49 is solely intended to refer to forced transfers,
and not voluntary immigration. Finally, if "transfer"
meant "permit voluntary immigration", then one would
expect the 4GC to ban all immigration to occupied territories,
including from third party countries. However, even on a theoretical
level, there can be no such ban in the 4GC which in Article 49
only forbids an Occupying Power from transfering parts of its
own civilian population. So according to the loose interpretation
of "transfer" proffered by Israel's critics, they would
have to concede that the 4GC authorizes Israel, for example, to
allow half a billion Chinese or more ironically, three million
Jewish American citizens to move to the Territories, but forbids
even just one Israeli citizen from moving to the Territories,
even if that Israeli is an Arab-Israeli! This absurd forced conclusion
is ample proof that at all levels, the interpretation of "transfer"
as "permit voluntary immigration" in Article 49 simply
doesn't work. And since the Israeli settlements in the disputed
territories were all formed via voluntary immigration, it follows
that they are completely legal within the framework of the 4GC.
Annexation
Pro-Palestinian websites often quote Article 47 in an attempt
to demonstrate that annexation is forbidden by the 4GC and hence
by international law. There is never any analysis of the wording,
just the snap judgement that somehow annexation is not allowed.
Here is the entire text of Article 47:
Protected persons who are in occupied territory shall not
be deprived, in any case or in any manner whatsoever, of the benefits
of the present Convention by any change introduced, as the result
of the occupation of a territory, into the institutions or government
of the said territory, nor by any agreement concluded between
the authorities of the occupied territories and the Occupying
Power, nor by any annexation by the latter of the whole or part
of the occupied territory.
The text is quite clear. While protected persons do not lose their
protection because of any changes in the legal status of the occupied
territory introduced by any local Party or authority, there is
nothing in the article to suggest that such changes are, in and
of themselves, violations of the 4GC, and indeed, annexation is
not listed in Article 147 which lists the various "grave
breaches" of the 4GC. In fact, annexation is not even mentioned
in any other place in the text of the 4GC. Annexation is a permissible
act which changes the relationship of the Occupying Power to the
occupied territory, but not to the occupied protected persons.
It is up to the international community to recognize or not recognize
the annexation as changing internationally recognized borders,
but even lack of such recognition does not make the act of annexation
a violation of international law. Thus, for example, when Jordan
annexed Judaea and Samaria ("the West Bank") in 1950,
it did not violate the 4GC, but simply failed to gain international
recognition of the annexation. The same applies to Israel's smaller
scale annexations of 1967. It is also interesting to note that
Israel's annexations of territories conquered in 1948-49 have
gained international recognition, yet there is no substantial
difference between the earlier and latter occupations. The only
conclusion can be that annexation, especially of territory which
has no current legal sovereign, does not constitute a violation
of international law.
Land expropriation
There are no references whatsoever to land expropriation in the
4GC. But as noted above, the 4GC does not ban annexation, nor
does it prejudge national claims. Hence it would be inappropriate
for the Convention to ban what is otherwise a legitimate legal
instrument of a ruling government to optimize on-going construction.
Refugee rights
There is no article in the 4GC which calls for the return of refugees
of war. The return of refugees mentioned in U.N. Resolution 194
is not based on the 4GC, and is only a recommendation as to how
to effect a reconciliation in the Arab-Israeli conflict. The only
4GC reference to restoring people to their homes is Article 49
which calls upon the Occupying Power to transfer back any civilians
who had been removed from their homes in the wake of security
concerns, and to do so upon the cessation of hostilities in that
area. If such restoration constitutes a security threat despite
the cessation of local hostilities, then Article 46 would apply:
In so far as they have not been previously withdrawn, restrictive
measures taken regarding protected persons shall be cancelled
as soon as possible after the close of hostilities.
An interesting ramification of Articles 46 and 49 is that, in
a legal sense, it is inappropriate during on-going hostilities
to try to coerce an Occupying Power into allowing the return of
evictees to their homes or to insist that an Occupying Power remove
whatever restrictive measures it has imposed. First the hostilities
have to cease, and only then does the Occupying Power become obligated
to remove the restrictive measures it had imposed. Therefore,
the tactic of the Palestinian Authority to set as a condition
of their ceasing to use terrorism and guerilla warfare that Israel
make withdrawals and remove restrictions from occupied territory
should not be respected by those who wish to see the 4GC upheld.
First all hostilities must cease, and only then can the issue
of easing restrictions be insisted upon. Implicit in this formula
is that occupation is not inherently a form of hostility or violence,
nor are the restrictive measures which Occupying Powers are entitled
to employ during outbreaks of hostilities. And in the specific
case of refugees, since their fleeing does not constitute a restrictive
measure taken by the Occupying Power, their return after the cessation
of hostilities is not a legal right within the context of the
4GC, but only an issue to be considered in a future negotiated
settlement.
Attacking military targets within civilian areas
The 4GC is terse and explicit with regard to the issue of attacking
military targets within civilian areas. Article 28, in its entirety:
The presence of a protected person may not be used to render
certain points or areas immune from military operations.
Collateral damage certainly has certain logical and moral limitations,
but the fundamental right to attack military targets at the risk
of nearby civilians is explicitly guaranteed in Article 28 of
the 4GC.
Targeted assassinations
Beyond the ramifications of Article 28 in permitting Occupying
Powers to attack military targets that lie within civilian areas
under its control, it should be noted that Area A within the PA
territory cannot be said to be occupied territory excepting when
IDF forces capture such areas as has happened periodically since
the start of hostilities in October 2000. Consequently, Israel
acts in complete conformity with the 4GC when it arrests or attempts
to arrest suspected terrorists in Areas B and C, but a priori
attacks suspected terrorists in Area A, which cannot be covered
by the 4GC when it is not under Israeli control. So-called targeted
assassinations, which have only occurred in Area A, are simply
acts of war conducted against legitimate military targets. And
it should go without saying that full-blown military confrontations
between the IDF and the PA military units are completely not governed
by the 4GC which only moderates between armies and civilian populations.
Therefore, the so-called "targeted assassinations" are
completely legitimate by the standards of the 4GC.
Conclusions
An objective reading of the Fourth Geneva Convention reveals it
to be a remarkably sophisticated document that takes into account
the realities of war and the potential necessity to send armies
into the midst of foreign civilian populations. While the 4GC's
primary goal is to protect civilian populations during hostilities,
it nevertheless recognizes the potential legitimacy of military
invasions and accordingly grants occupying powers the right to
insure that the local civilian population does not become a viable
military threat to the occupying power nor even an incumberance
to the occupying power's ability to pursue and attack legitimate
military targets. In fact, the limiting of rights of civilians
under occupation is the very mechanism by which the 4GC guarantees
their safety in that, when complied with by the civilians in question,
said limitations prevent the occupying power from being able to
legitimately target an otherwise hostile population.
Within the context of the Arab-Israeli conflict, this latter point
has been all but lost in a sea of emotion, propaganda, and poorly
thought-out UN resolutions which, rather than ameliorating the
condition of the Palestinian Arabs, have encouraged Palestinian
militancy and terrorism, and the consequent and justified military
responses of the Israeli government, in conformity with the standards
of the 4GC. Therefore, those parties who are most interested in
seeing a peaceful resolution of the Arab-Israeli conflict would
do well to insist on the complete applicability of the Fourth
Geneva Convention to all areas controlled by the Israeli army,
and accordingly to demand that all military actions be summarily
ended on the part of the Palestinians, a move which if implemented
would necessarily mean the end of Israeli military responses and
the reopening of the diplomatic process. Most importantly, if
the Palestinians were to act as civilians under occupation as
per the 4GC, there would be no more bloodshed, no more tragedies,
and no more "cycles of violence". Not only would such
a situation be intrinisically valuable, the complete cessation
of hostilities is the very condition which will allow the diplomatic
process to reach a successful conclusion where no one has to live
under any form of occupation or threat of violence.
--------------------------------
The
views above represent the personal views of the author and are
not necessarily the views of the ICIC
