Please take a look at University of Waterloo political scientist Emmett MacFarlane’s The Prudent Court: Anti-terrorism, charter rights and judicial caution from Maclean Magazine.
Emmett, who specializes in the Supreme Court if Canada writes on the recent decision upholding the anti-terrorism provisions of the Criminal Code.
Two questions that needs to be answered in regarding to the current conflagration in Gaza and the West Bank is the following: Are the Gaza strip and West Bank “occupied” and, if so, then what parts of international humanitarian law apply?
Article 42 of the 1907 Hague Convention says that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” According to Common Article 2 of the Geneva Conventions of 1949, the Conventions apply to any territory occupied during international hostilities. They also apply in situations where the occupation of state territory meets with no armed resistance.
Though there is no Palestinian state, any armed conflict between Israel and the Palestinians would be considered an international armed conflict under Article 1(4) of Additional Protocol I which confers international status on any armed conflict where “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” The term “alien occupation” was written into the Protocols specifically to apply to the Israeli-Palestinian conflict.
However, since the unilateral withdrawal of Israeli forces from Gaza in 2005 it is no longer “occupied.” Despite what the International Court of Justice, United Nations General Assembly, and United Nations Security Council say the attribution of “occupation” to a territory is a statement of fact and not a political decision.
The status of the West Bank is different. The Israeli High Court of Justice has ruled that Israel holds the West Bank under “belligerent occupation” while again the International Court of Justice, United Nations General Assembly, and United Nations Security Council regard Israel as an occupying power. As such, the Geneva Conventions would apply in the West Bank.
Yet, given that the Court has ruled an occupation exists only Geneva Convention IV would apply here. Hamas, as a non-state entity cannot – by definition – be a signatory to the Conventions and Israel is not a signatory to Additional Protocol I. As such, Hamas fighters are not entitled to the protections of the first three Geneva Conventions nor Additional Protocol I.
Another key aspect of the international humanitarian law in general and belligerent occupation in particular is the prohibition on reprisals. I’ll deal with this aspect of the conflict in a subsequent post tomorrow.