International Law In Palestine: Applicable Or Not?

The question of whether international law applies to Palestine is a complex one, with a range of perspectives among international states and legal scholars. The discussion is particularly relevant in the context of the Israeli-Palestinian conflict, where accusations of war crimes and human rights violations have been made against both sides. International humanitarian law, including the laws of war and the rules of occupation, and international human rights law are the two international legal regimes primarily governing the situation in the Occupied Palestinian Territory. The applicability and enforcement of these laws in the context of the Israeli-Palestinian conflict have been a subject of debate and scrutiny.

International humanitarian law and the laws of war

International humanitarian law (IHL), or the laws of war, is a set of rules that govern armed conflict and military occupation. The modern version of IHL is set out in the Geneva Conventions of 1949, alongside other treaties and customary international law. IHL binds states, including Israel, as well as non-state armed groups involved in conflict, such as Hamas and Islamic Jihad. The laws of war only apply in specific situations, namely during an armed conflict or an occupation.

The fundamental rule of IHL in conflict is that all parties must distinguish between combatants and civilians at all times. Civilians and civilian objects must never be the target of attacks, and parties may only target combatants and military objectives. International humanitarian law also requires that parties to the conflict take all feasible precautions to minimise harm to civilians and civilian objects. If an attack fails to discriminate between combatants and civilians or causes disproportionate harm to the civilian population compared to the military gain, it is prohibited.

Under IHL, anyone taken into custody, such as prisoners of war, must be treated humanely. Taking hostages and using people as "human shields" are prohibited. In the case of an attack that may affect the civilian population, the laws of war require parties to give "effective advance warning" unless the situation does not permit it. However, giving warning does not absolve parties of their responsibility to protect civilians.

Israel has been occupying the West Bank, including East Jerusalem, and Gaza, collectively known as the Occupied Palestinian Territory (OPT), since 1967. As the occupying power, Israel is required to ensure that the basic needs of the population, such as food and water, are met. Israel's settlement policy in the OPT has been widely condemned as a violation of international humanitarian law and has been deemed illegal by the European Union and the United Nations Security Council.

The International Criminal Court (ICC) in The Hague has jurisdiction over war crimes and other serious international crimes committed in or from the OPT. The ICC prosecutor has an ongoing investigation into possible crimes in Palestine.

International human rights law

The UN Human Rights Office in the OPT is the only internationally-mandated entity to monitor and report publicly on the human rights situation in the OPT. The office is based in Ramallah and has a sub-office in Gaza, as well as field offices in East Jerusalem and Hebron. It is guided by the principles and spirit of international human rights law and international humanitarian law, with respect for human dignity and non-discrimination at the core of its work.

The Palestinian Authority (PA) has guaranteed freedom of assembly to the Palestinian population, however, the right to demonstrate for opponents of the PA regime or its policies has become increasingly restricted by police, causing concern for human rights groups. There is also a growing crackdown on writers who criticise the Palestinian government. In 2013, a 26-year-old Palestinian activist was sentenced in absentia to one year in prison for "extending his tongue" against the PA's president on Facebook.

The PA has also been criticised for failing to honour its commitments to respect and protect religious rights. In 2006, major Muslim organisations, mosques, and municipal leaders in the West Bank town of Qalqiliya requested that the interior minister of the PA shut down the local branch of the Young Men's Christian Association (YMCA) due to alleged missionary activity. The same year, anti-Christian riots were reported in Ramallah and surrounding villages, as well as in towns in the Gaza Strip.

In addition, the PA has been accused of ""inhumane practices and human rights violations" by the Arab Organization for Human Rights (AOHR), which claims that from 2007 to 2011, the PA detained and tortured thousands of Palestinians. Amnesty International has also documented the PA's arrest and detention of civilians without charge, and the widespread use of torture.

The situation in Palestine has been described as "bleak, black and bloody" by prominent Palestinian human rights lawyer Raji Sourani, who has urged western powers and global institutions to do more to uphold international law in the region.

International criminal law

The International Criminal Court (ICC), an independent judicial body established by the Rome Statute, has been at the centre of these efforts. The ICC has the mandate to investigate and prosecute individuals accused of committing genocide, crimes against humanity, war crimes, and the crime of aggression. In 2015, the State of Palestine acceded to the Rome Statute and recognised the ICC's jurisdiction over alleged crimes committed in the occupied Palestinian territory since June 2014.

The situation in Palestine has been a subject of investigation by the ICC since 2021, with a focus on crimes within the Court's jurisdiction that are alleged to have been committed since June 2014. This investigation followed a preliminary examination by the ICC Prosecutor, who determined that all the statutory criteria under the Rome Statute for opening an investigation had been met. The investigation specifically looks into crimes committed in the West Bank, including East Jerusalem, and the Gaza Strip.

The ICC's involvement in Palestine has been met with both support and criticism. Some have welcomed the Court's intervention as a necessary step towards accountability and justice for victims. However, others, including Israel, have disputed the ICC's competence and questioned its ability to act impartially in this context.

In addition to the ICC's efforts, civil society organisations and human rights groups have also played a significant role in advocating for the application of international criminal law in Palestine. They have filed complaints with the ICC, alleging various violations of international humanitarian law and human rights law by both Israeli and Palestinian actors. These complaints include allegations of "war crimes committed against journalists," "genocide" in Gaza, and "apartheid" and "incitement to genocide" by Israeli leaders.

The application of international criminal law in the context of the Israel-Palestine conflict is complex and highly contentious. While some argue that it is a necessary tool to hold individuals accountable and seek justice for victims, others criticise it as a politicised process that fails to address the underlying issues driving the conflict. Nonetheless, the efforts to invoke international criminal law in Palestine highlight the ongoing pursuit of justice and accountability in a region marked by decades of conflict and human suffering.

The Geneva Conventions

The Fourth Geneva Convention, adopted in 1949, is particularly relevant to the Israeli-Palestinian conflict. This Convention is concerned with the protection of civilians during times of war and military occupation. It prohibits a range of acts, including violence against life and persons, the taking of hostages, deportations and transfers of civilians, pillages, reprisals, collective punishment, and outrages upon personal dignity.

The Fourth Geneva Convention applies to situations of "partial or total occupation of the territory of a High Contracting Party". In the context of the Israeli-Palestinian conflict, there is broad consensus among the international community, including the United Nations and the International Committee of the Red Cross (ICRC), that the Fourth Geneva Convention applies to the Occupied Palestinian Territory, including East Jerusalem, as well as other Arab territories occupied by Israel since 1967. This applicability has been reaffirmed by the United Nations Security Council in 25 resolutions.

Despite this consensus, Israel, as the occupying power, has defied the Convention's applicability to the Occupied Palestinian Territory. Israel argues that the Convention only applies to the occupation of the territory of one High Contracting Party by another and claims that Jordan and Egypt did not have sovereignty over the West Bank and Gaza, respectively. However, this claim is not legally valid as the Fourth Geneva Convention protects the rights of people who find themselves "in the hands of a Party to the conflict or occupying Power of which they are not nationals", regardless of competing claims to sovereignty.

The Fourth Geneva Convention imposes several obligations on occupying powers, including the duty to ensure the humane treatment of the occupied population, provide for their basic needs, and respect their rights and freedoms. It also prohibits the occupying power from transferring its civilian population into the occupied territory, which is intended to prevent colonisation and annexation.

Israel's settlement policy in the Occupied Palestinian Territory, including East Jerusalem, is seen as a violation of the Fourth Geneva Convention. By transferring its civilian population into the occupied territory and expropriating land for settlement construction, Israel is violating the Convention's prohibition on population transfers and is creating a situation of colonisation.

The consequences of Israel's non-compliance with the Fourth Geneva Convention have been devastating for the Palestinian civilian population, resulting in mass human rights violations. These include violations of the right to life, liberty, security, equal treatment before the law, access to an effective remedy, freedom of expression and peaceful assembly, freedom of movement, adequate housing, education, and the right to earn a decent living through work.

Overall, the Fourth Geneva Convention is a critical component of international humanitarian law, aiming to protect civilians during times of armed conflict and military occupation. While there is broad consensus on its applicability to the Israeli-Palestinian conflict, Israel's non-compliance with the Convention has led to severe consequences for the Palestinian people.

The Rome Statute

Palestine's relationship with the Rome Statute and the ICC has been a complex and protracted process. In 2009, the Palestinian Authority government lodged a declaration under Article 12(3) of the Rome Statute, allowing the ICC's jurisdiction retrospectively for "acts committed on the territory of Palestine since July 1, 2002". However, in 2012, the ICC Prosecutor declined Palestine's request to accept the Court's jurisdiction, citing that Palestine could not be considered a State for the purposes of the Rome Statute.

On January 1, 2015, the Government of Palestine lodged another declaration, this time accepting the jurisdiction of the ICC over alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014. This declaration was based on the United Nations General Assembly resolution passed on November 29, 2012, which recognized Palestine as a non-member observer state. On January 2, 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General, and the Statute entered into force for Palestine on April 1, 2015.

The ICC Prosecutor announced the opening of a preliminary examination into the situation in Palestine on January 16, 2015, to determine whether the criteria for opening a full investigation were met. This decision was made as a "matter of policy," and the Prosecutor specified that issues of jurisdiction, admissibility, and the interests of justice would be considered.

On December 20, 2019, the Prosecutor announced that the preliminary examination had concluded that all the statutory criteria under the Rome Statute for opening an investigation had been met. However, due to the complex legal and factual issues, a request was made to Pre-Trial Chamber I for a ruling to clarify the territorial scope of the Court's jurisdiction.

On February 5, 2021, the ICC Pre-Trial Chamber I decided that the Court's territorial jurisdiction extended to the territories occupied by Israel since 1967, including Gaza and the West Bank, with East Jerusalem. This decision did not determine statehood or legal borders but affirmed the Court's jurisdiction over the Occupied Palestinian Territory.

On March 3, 2021, the Prosecutor announced the opening of the investigation into the situation in the State of Palestine, covering crimes within the Court's jurisdiction since June 13, 2014. This investigation has proceeded despite challenges and objections from Israel, which disputes the ICC's jurisdiction and argues that Palestine is not a sovereign state capable of being a party to the Rome Statute.

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