Legal laws of occupation and how Israel bypasses them | Machsomwatch

It is forbidden to settle colonists in the occupied area

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Precepts of Occupation Laws
  • Occupation is not sovereignty
  • Occupation is temporary – the occupier must aspire to put an end to occupation
  • The occupier is a trustee who must administer the ground in favor of the occupied
  • The occupier is not entitled to promote non-security interests or interests of its own citizens
  • By definition, the occupation rule is  a military rule in which the occupier has no sovereignty, and it is inherently non democratic
  • The main assignments of the occupier are:        

- The military rule should protect the local population

-  Under such rule, the police is subordinate to the army

-  No population is to be transferred from the occupying power to the occupied territory

      

 

Areas of control freezed by the Oslo Accords
The Facts: International Conventions Regarding War and Occupation

 

  • The Hague Conventions of 1899 and 1907

These contain the official initial formulations of laws and conduct of war on land and at sea. They were made to render a precise definition of the laws of war, aspiring to soften war damages and severity as much as possible. Militarily, the instructions were meant to serve as rules of conduct for the warring parties in their mutual relations and as regards the local population. Israel signed the 1907 Hague Convention on August 14, 1978.

  • The Geneva Convention – 1949

This convention deals with human rights in a “state of war”, emphasizing the occupier’s duty to provide the occupied population with basic human rights and enable routine everyday life. It details the following rights: the right to life; the right to freedom of movement; the right to livelihood; the right to housing; the right to own property; the right to fair trial; the right to health care; the right to environmental planning; prohibition of collective punishment; prohibition of expelling inhabitants from the occupied territory; prohibition of the forcible settling of citizens of the occupying state in occupied territory; prohibition of pressuring the occupied population to collaborate with the occupying powers.

This convention is considered a part of agreed-upon international law; however, Israel’s governments have always claimed that it does not apply to Israel’s actions in the Occupied Palestinian Territories. This is because Israel regards the West Bank and Gaza Strip as disputed territories that were occupied prior to 1967, and  therefore cannot  be considered territories occupied by Israel. Still, Israel has declared that it accepts the convention’s “humanitarian instructions”. It signed on July 6, 1951, but did not anchor the convention in its laws nor confirmed it through rulings of the Israel Supreme Court.

  • The Rome Convention of 1998

This convention has defined genocide, crimes against humanity and war crimes; accelerated the founding of an international court to try criminals charged with any of the above crimes. Israel is signatory to this convention as well, but has not ratified it, and therefore does not take part in the International Court at the Hague, active since 2002.

Following the recognition of Palestine as an Observer State at the United Nations on February 5, 2021, it was accepted as a member of the International Court according to the Rome Convention, and this court is therefore allowed to respond to petitions dealing with the West Bank, the Gaza Strip and East Jerusalem. The resolution removes the legal barriers that had so far prevented the court from investigating matters in the above-mentioned areas.

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What is Occupation

Occupation is a situation whereby a certain territory is subjected de-facto to the rule of a hostile army. Occupation is manifest only over a territory in which such rule has been constituted and is realizable.

Since the Second World War, it is agreed that the situation of occupation must end with the occupier retreating from the territories it has occupied, and their rule must be returned to their former rulers. The retreat of the occupier is usually dependent upon agreements that end the state of war.

Until the Second World War and for a short while afterwards, the right of occupation – a phenomenon wherein a state that occupied territories of another state annexes them as its own – was rampant, and even gained international recognition.

Such a phenomenon is no longer feasible, and its recognition by the international community gives rise to strong international controversy.

The issue of status of occupied territories and their inhabitants – especially those that were occupied to begin-with by the country from which they were siezed in war by another country – is one of the most complex issues of international law at present.

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Occupation is Not Sovereignty

As far as international law is concerned, sovereignty is the rule of a territory and the right to establish laws there. Such a right is usually held by a state that applies its laws to the territories within its borders. In other words, sovereignty is simply the  ruling over a territory. For instance, the sovereign for any matter in the areas designated as Judea and Samaria, is the Israeli army (through the regional commander), not the government of the State of Israel. This means that the regional commander is at one and the same time the legislative, executive and judiciary authority over the occupied territory. But the official position of the Israeli government regarding the occupied territories is that they are disputed territories, occupied prior to Israel’s domination, and that Israel has a a claim over them.

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Is the Israeli Occupation Really Temporary

According to Amendment 55 of the 1970 Hague Amendments, to which Israel is signatory, the occupying state functions as a trustee of the occupied territory it holds as a temporary charge only, and is forbidden to carry out long-term changes that are not in favor of the occupied population. Transferring civilian population into the occupied territory in order to preserve a demographic status-quo is absolutely forbidden. Occupation rule is perceived as an outstanding and temporary state of affairs, but no instruction defines the temporariness of occupation.

Indeed, the ruling of the Israel Supreme Court recognizes the fact that the occupation is temporary and that occupied territory is held by the occupier in trusteeship alone. However, Israel claims that it has no partner for a solution of the conflict, and this is why occupation has lasted so long. As far as international law is concerned, this occupation reality which is unlimited in time bears an inherent contradiction of the Hague Convention’s demand from the occupier - namely to apply a temporary trusteeship rule with all its limitations.

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Clauses that define war crimes according to international law

 - Violating war law – such as establishing colonies

 - Crimes against humanity – wide-range discriminatory administration of the occupied civilian population (apartheid de facto)

- Crimes of belligerence – waging forbidden war

- Genocide

-  Personal accountability – in international law, the crimes are attributed to the persons who perpetrated them, not to the state, usually to the commanding echelons.

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Apartheid – an International Crime

While occupation is a legal state of affairs (albeit outstanding and temporary), by definition, apartheid is an international crime. Legal opinion and the 2022 Amnesty Report establish that an apartheid crime against humanity is being perpetrated in the West Bank. The perpetrators are Israelis, the victims - Palestinian. The crime is carried out because Israeli occupation is a rule of control and oppression, exerting inherent discrimination against Palestinians:

  • The Israeli occupation backs up the ‘colonization project’ and enables citizens of the occupying power to colonize the occupied territories.
  • The settlements-colonies create wide-range of limitations to the human rights of the occupied Palestinian population.
  • Israel acts in various ways to perpetuate its rule over the occupied population, preserving the inferiority of Palestinians and inherently discriminating against them.
  • A reality of control and oppression of one group – the Palestinians – is exerted by another national group – the colonists – and this is inhuman.
  • Israeli rule deprives the occupied group of its rights and resources, and provides resources to the ruling group by physical and legal separation of the national groups living in the same geographic area.
  • Israel has created a separate judicial system for each of the two national groups living within the occupied territory, and this is precisely the definition of an apartheid regime.

Israel claims this is a temporary state of affairs and that it has no intention of preserving control, oppression and inferiorization of the Palestinians. However, in contradiction of this, policy and evidence on the ground prove that its intention is to perpetuate this situation. In 2017, Netanyahu in his capacity as Israel’s Prime Minister, declared his intention to annex the occupied territories without providing human and civil rights to the local population.

Israel has been carrying out “gradual annexation” on the ground, whose administrative meaning is the abolition of military rule in the occupied territory, and extending the territorial authority of Israeli civil authorities deep inside the West Bank.

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Levy Committee Attempt to Bypass Occupation Law

The Committee headed by the ex supreme-court judge Edmond Levy, was created in February 2012 after a series of legal procedures by which the state was required to demolish illegal construction of settlements by Israeli citizens inside the Occupied Territories.

The state wished to find a way to refrain from demolitions in the settlements and their numerous outposts, but ran into legal difficulties.

Elements in the Israeli right-wing were interested in establishing an alternative legal foundation to the existing one, through the Levy Committee, which would enable Israeli construction in the West Bank.

In its report, published on July 9, 2012, the committee transgressed its mandate (that included only the legitimization of construction in the West Bank) and established that:

- From the point of view of international law, “occupation” laws as expressed in the relevant international conventions, are not valid in the special historical and legal circumstances of Israeli presence in Judea and Samaria –

- “… And as for the settlers' outposts, the committee has stated that ‘founding these settlements [some of the illegal outposts] has taken place for years with the knowledge and agreement of the most senior political echelon – government ministers and prime ministers, and therefore this should be regarded as a generalizing agreement’.”

In other words, the committee established that:

- There is no occupation

- Many of the illegal outposts are legal

- The Palestinians’ right to ownership of property is null and void

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Any Palestinian structure is demolished, any colony and settlers' outpost is expanded
Photo: 
Hagit Bak, Nurit Popper