In its report presented to the 22nd session of the United Nations (UN) Human Rights Council (the Council) on 18 March 2013[i], the International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory (OPT) outlined Israel’s ongoing and persistent violations of international human rights and humanitarian law along with the relevant international legal norms and remedial measures available to secure justice for the occupied Palestinian population.
The report echoed previous UN findings, including those of a 1979 commission on settlements established by the UN Security Council (SC), which concluded that “the Israeli Government is actively pursuing its wilful, systematic large-scale process of establishing settlements in the occupied territories.
”[ii] Common Article 1 of the Geneva Conventions obliges the High Contracting Parties to ensure respect for the provisions of the Conventions.
According to prominent scholars, this obligation should not be seen as merely reinforcing States’ general obligation to respect, but entails a duty on States to take all possible steps to ensure that the rules enshrined in the Conventions are respected by all, and in particular by the parties to a conflict.
[iii] The High Contracting Parties have not fulfilled their corresponding duties,[iv] eroding faith in the measures envisioned under the Convention by failing to apply corrective provisions available to them.
This inaction effectively facilitates the maintenance of settler colonies, and erodes global confidence in international law.
[i] “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,” A/HRC/22/63, 7 February 2013 .
[ii] Report of the Security Council Commission established under resolution 446 (1979), document S/14268, p.
Boisson and L.
Condorelli, “Common Article 1 of the Geneva Conventions Revisited: Protesting Collective Interests” International Review of the Red Cross, 837 (2000).
According to the authors, while there were views that Article 1 was not drafted with the intention of imposing obligations on States that were not also derived from the other provisions of the Geneva Conventions, a more careful examination of the travaux préparatoires reveals that the negotiators clearly had in mind the need for the parties to the Conventions to do everything they could to ensure universal compliance with the humanitarian principles underlying the Conventions.
[iv] Besides the obligations under Common Article 1 to the Geneva Conventions, the High Contracting Parties have additional obligations under Article 146 of the Fourth Geneva Convention, which is the cornerstone of the system utilised for the repression of serious violations of the Convention (grave breaches).
Given the seriousness of these violations, which are affecting the international community as a whole, the High Contracting Parties to the Conventionsare under an obligation to enact any legislation necessary to provide effective penal sanctions, to search for and prosecute individuals alleged to have committed, or to have ordered to be committed, these crimes, in accordance with the principle of universal jurisdiction.
Grave breaches of the Fourth Geneva Convention are listed in Article 147, which includes in this category also the unlawful deportation or transfer of protected persons.