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ICRC official statement: Reappraising the role and limits of the legal discourse on occupation in the Israeli-Palestinian context

Address by Mr Christoph Harnisch, Head of Delegation, International Committee of the Red Cross, Israel, the Occupied and Autonomous Territories. International conference on forty years after 1967, 5-7 June 2007 Jerusalem and Tel-Aviv.

Dr Lars Hänsel, Members of the Conference Committee, Prof. Koskenniemi, Conference Participants, Ladies and Gentlemen,

It gives me great pleasure to be the first to welcome all of you to this conference on Law, Occupation and the Israeli-Palestinian context. It is truly a sign of the fruitful cooperation between the International Committee of the Red Cross and Israeli academia that it has become the pleasant duty of the ICRC Head of Delegation for Israel and the occupied territories to give an address each year at such conferences on International Humanitarian Law (IHL).

For those of you who, by mischance, may have missed similar addresses by my predecessors, I will briefly remind you that this cooperation is no longer surprising to those who are more familiar with our operational activities in the region and worldwide. Our close cooperation with Israeli academic institutions has now reached a level of maturity and versatility, and eyebrows are no longer raised and question marks are no longer scribbled on invitations. Through different programs, the academic and professional IHL community in Israel conducts a regular discussion of and about IHL - at conferences such as this one, at our Guest Lecture Series (together with the Minerva Center at the Hebrew University Law Faculty) or at annual IHL workshops. These are attended by leading local and international experts.

Recently, we have decided to expand our academic activities aimed at students. I would like to announce that between 4 and 7 of December 2007, the ICRC will host the first ever IHL competition for students in Israel. Over four full days, teams of students from different institutions will be trained in and compete on their knowledge of IHL and their ability to apply it in practical situations. I am also happy to announce that so far, four institutes have accepted the ICRC's invitation to participate in the competition. The final round of the competition will be held on Thursday, December 6th. Those of you who wish to attend or find out more are welcome to leave their mailing address with my colleagues outside this room.

I do not wish, however, to limit my contribution to mere greetings and announcements. I would like, on behalf of the ICRC, to make several observations on content, which I would like to address directly to you, the conference participants.

Allow me to start with the conference title, which deals with "Reappraising the Role and Limits of the Legal Discourse on Occupation" in the Israeli-Palestinian context. The title also refers explicitly to the length of this particular occupation situation. This is an open invitation to raise questions with regard to the role and limits of the legal discourse but also, by implication, with regard to the role and limits of the law itself.

Indeed, this is an opportune moment for reappraisal. It is timely because of the passage of 40 years of occupation. The law of occupation, at least originally, was largely foreseen to address short-term humanitarian and other concerns. It comes at a moment when IHL and the law of occupation are being closely studied by world actors. As we all know, the horrific events of September 11th, 2001 and the consequent launch of a global fight against terrorism have led many to re-examine the balance between state security and individual protection. The situation in Afghanistan and Iraq focused much of this debate on the law and phenomenon of occupation. This inquiry is also timely from a policy perspective.

Let me elaborate on that.

In December 2003, the ICRC submitted to the 28th International Conference of the Red Cross and Red Crescent a report titled "IHL and the Challenges of Contemporary Armed Conflicts". The Report, which is available on the ICRC website, sought to present "an overview of some current challenges to [IHL], to generate reflection and debate on the issues identified and to outline prospective ICRC action in clarifying and developing the law in the time ahead".

The report identified a number of topics as requiring possible clarification, given that differing interpretations of some rules generate different results in terms of protection of civilians in practice. One of these topics was, indeed, the "concept of occupation". Recently, the ICRC has dedicated additional resources to this issue. We are happy to have here tonight, as one of the conference participants, Mr Tristan Ferraro, who worked previously as IHL coordinator in the ICRC Tel Aviv Delegation and recently joined the legal division in Geneva in order to enhance work on that topic. Another of our legal advisers who is still with the delegation, Mr Rotem Giladi, will also deliver a paper and chair the conference's concluding session. Needless to say, this conference is co-hosted by the ICRC. My first point, therefore, is evident: we want a serious and thoughtful debate about the law of occupation and the discourse it generates. We welcome it. We take it seriously. We even sponsor it.

That is not to say, however, that we think that the debate should be entirely open-ended. As the guardian of IHL with a special mandate under humanitarian law treaties, the ICRC has an agenda. In our perspective, the debate has to be geared towards one ultimate result: "finding ways of dealing with new forms of violence while preserving existing standards of protection provided for by international law". This, in the view of the ICRC, has been and remains the overriding challenge facing the international community today. My second point, therefore, is that a debate about occupation law and the discourse it gives rise to, even if taking place in the halls of academic institutions, must never be divorced from practice and reality. It must be conducted with an urgent, humanitarian sense of purpose: preserving and, where needed, increasing the protection of individuals while enabling efficient methods of dealing with violence.

This brings me to my third point. Law, we all will likely agree, is frequently imperfect. IHL and the law of occupation are no exception. The law of occupation can surely be interpreted in ways more faithful to its social functions. Its norms, rules and standards can certainly be improved, added to and developed.

Yet our experience demonstrates that the foremost problem with IHL is not so much its content, adequacy or relevance. We view IHL as a body of rules whose basic tenets, if applied in good faith and with the requisite political will, continue to serve their intended purpose - which is to regulate the conduct of war and thereby alleviate the suffering caused by war. Our experience tells us that the main problem in relation to IHL is, rather, the lack of political will by States and armed groups to comply with IHL norms. My third point is to urge the conference participants to bear that lesson in mind: to be concerned equally with the content of occupation law discourse as with the need to have the norms of that law complied with.

Compliance with any branch of public international law raises many questions. It concerns efficacy and enforcement mechanisms. It requires political will, both domestic and international. It has to do with values, policy decisions and legitimacy.

These questions are also valid for a theoretical appraisal of occupation law, but it is not merely an abstract call for action. It is founded on an operational, humanitarian reality. This conference, after all, wishes to reappraise the law in light of the Israeli-Palestinian context.

Let us, then, ask questions concerning compliance.

Consider the question of settlements. You all know the ICRC's long-standing position that the establishment of settlements is a violation of Article 49(6) of the Fourth Geneva Convention of 1949. We all know equally well the positions taken - or not - on this question by the various branches of the Israeli government. Ask yourselves this: where would we be now, 40 years after 1967, but for the settlement enterprise? Seen from a purely Israeli perspective, what would have been the effects - the cost and the benefits - of compliance with this particular norm of IHL? Would Israeli security have been enhanced or diminished? How would the Israeli economy have performed? What would Israeli society be concerned with, without the settlements, the debate around their future and the consequences they entail? What would Israeli foreign and domestic policymakers focus their attention on?

The same question can be asked from a Palestinian perspective: had settlements not been established in the West Bank, would there be a need to so severely restrict, for such extended periods of time, the movement of people wishing to work, shop, study, visit relatives or do anything at all that is encompassed by the expression 'normal conditions of living'? Would there be a need, but for the settlements, to parcel the West Bank, seriously hamper economic activity, expropriate so much agricultural and grazing land? Would the Israeli law enforcement authorities be so severely criticized for their continuous failure to live up to the most fundamental duty of the occupying power - to respect and protect the civilian population - and enforce law and order in the face of violence, harassment and humiliation?

I leave you to judge whether the problem stems from the rule outlined in Article 49(6) or with compliance with this rule. I leave you to judge the effects of lack of compliance, and whether IHL is a sound basis for policy decisions.

Let me say that if it does offer such a basis indeed, it does so for all sides. Consider, for example, the IHL rules concerning the choice of methods of warfare. Ask yourselves, for instance, what has Palestinian society gained or lost by the practice of Palestinian armed groups of directing attacks against civilians rather than at military personnel and objectives. Such attacks exact a heavy, terrible price from Israeli civilians. What are the effects of suicide bombing or Qassam rockets on the Palestinians themselves? Would different forms of resistance to occupation have promoted or impeded Palestinian national aspirations? What would Palestinian society have looked like today? Would the Gross National Product be different? Would the infant mortality rate differ?

Similar questions can and should be asked of others. Under Article 1 common to all four Geneva Conventions of 1949, States undertook to "respect and ensure respect" for these conventions in all circumstances. This provision is now generally interpreted as enunciating a specific responsibility of third States not involved in armed conflict to ensure respect for international humanitarian law by the parties to an armed conflict. While these provisions have, from time to time, been invoked by various international actors operating in this context, this has not been done consistently. It is evident, however, that the role and influence of third States, as well as of international organizations - be they universal or regional - are crucial in improving compliance with international humanitarian law. What challenges would members of the international community have faced today had they sought to achieve more rigorous respect for IHL by Israelis and Palestinians alike?

To conclude, I believe that the fact that the occupation has now lasted for 40 years does indeed call for a reappraisal. It requires a reappraisal of the law and the discourse surrounding it. It also requires - perhaps compels - a reappraisal of political choices, their cost and benefits, and a reappraisal of diplomatic and humanitarian strategies and their impact. I hope that the proceedings of this conference will contribute to such a process and that, moreover, they will facilitate reflection on better, more hopeful alternatives. It is time.

Thank you very much.