The Supremacy of the Geneva Conventions: A Shield Against Israeli Colonial Agreements

 BY: Dr. Ayman Salama

Prof of international humanitarian law and Member of Shaf Center

Agreements made by occupying or colonial powers, such as those negotiated between an external authority and a subordinate entity, cannot supersede or nullify the foundational protections enshrined in the four Geneva Conventions of 1949. These Conventions form the cornerstone of international humanitarian law, ensuring the protection of civilians, prisoners of war, and those affected by armed conflict.

When agreements are imposed under duress or as part of colonial schemes, they often violate the principle of consent and lack legitimacy under international law. The Geneva Conventions, however, maintain their universal and binding character, standing above any unilateral arrangements that contravene their provisions. Article 47 of the Fourth Geneva Convention explicitly prohibits the use of agreements that erode the protections guaranteed to occupied populations.

This enduring legal framework reinforces the principle that human dignity and the laws of war cannot be diminished through coercive treaties. Any attempt to circumvent these protections through colonial or exploitative arrangements is invalid under international law and must be rejected by the global community. The Geneva Conventions remain a bulwark against the erosion of fundamental rights, irrespective of political pressures or power dynamics.

On November 21, 2024, the issuance of arrest warrants by the International Criminal Court (ICC) faced unprecedented delays, as over 60 member states raised concerns about the court’s jurisdiction. This situation, a significant development in the ICC’s history, highlights key legal and procedural challenges related to the court’s jurisdictional authority and its application in politically sensitive cases. Below is a legal analysis of the underlying issues and implications:

1- The Question of Jurisdiction

The ICC’s jurisdiction is primarily based on the Rome Statute, which outlines its authority over crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. The delay in issuing arrest warrants underscores persistent disputes about:

State Party Consent: Jurisdiction often hinges on whether the alleged crimes occurred in the territory of a state party to the Rome Statute or were committed by nationals of such a state. Some states have challenged the ICC’s authority to proceed when the alleged crimes involve non-member states.

UN Security Council Referrals: The Rome Statute allows for jurisdiction in non-member states when referred by the Security Council. However, this pathway often faces political pushback, particularly from states with veto power or those aligned with accused parties.

2- Procedural Challenges and Delays

The delayed issuance of warrants marks a rare moment where procedural debates overshadowed substantive legal questions. Member states raised concerns about:

Political Implications: The use of ICC arrest warrants in politically charged conflicts often triggers fears of selective justice or misuse for political leverage.

Fair Trial Concerns: Some states questioned whether the evidence presented to the Pre-Trial Chamber met the standards necessary to justify arrest warrants, potentially undermining due process.

3- International Pushback

The opposition of more than 60 ICC member states is a reflection of broader criticisms of the court’s functioning:

Selective Prosecution: Critics argue the ICC disproportionately focuses on weaker states or specific regions, such as Africa, while avoiding scrutiny of powerful nations or their allies.

Jurisdictional Overreach: Many states view the ICC’s actions as encroachments on national sovereignty, particularly when the court asserts jurisdiction over nationals of non-member states through territorial or situational claims.

4- Legal Implications

The delays in issuing arrest warrants carry several legal and institutional implications:

Undermining Credibility: The ICC’s credibility may be at stake when member states openly question its jurisdiction and procedural fairness.

Precedent for Future Cases: Prolonged debates could create a precedent for further delays, weakening the ICC’s effectiveness in addressing urgent cases of international crimes.

Broader Debate on Reform: The incident underscores the need for structural reforms to strengthen the ICC’s mandate and enhance its legitimacy.

The November 2024 delay in issuing ICC arrest warrants marks a critical juncture in the court’s history, reflecting deep-seated tensions over its jurisdictional reach and procedural integrity. While the ICC remains a cornerstone of international justice, this episode highlights the importance of addressing member state concerns to ensure its effectiveness and impartiality in the future.

The debate surrounding the International Criminal Court’s (ICC) jurisdiction over Israeli nationals has drawn significant observations and critiques from various member states, legal scholars, and international organizations. Central to this debate is the question of whether the ICC has authority over nationals of non-member states (like Israel) when alleged crimes occur within the territory of a state party (e.g., Palestine).

 On November 21, 2024, the issuance of arrest warrants by the International Criminal Court (ICC) faced unprecedented delays, as over 60 member states raised concerns about the court’s jurisdiction. This situation, a significant development in the ICC’s history, highlights key legal and procedural challenges related to the court’s jurisdictional authority and its application in politically sensitive cases. Below is a legal analysis of the underlying issues and implications:

1- The Question of Jurisdiction The ICC’s jurisdiction is primarily based on the Rome Statute, which outlines its authority over crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. The delay in issuing arrest warrants underscores persistent disputes about:

 State Party Consent: Jurisdiction often hinges on whether the alleged crimes occurred in the territory of a state party to the Rome Statute or were committed by nationals of such a state. Some states have challenged the ICC’s authority to proceed when the alleged crimes involve non-member states.

 UN Security Council Referrals: The Rome Statute allows for jurisdiction in non-member states when referred by the Security Council. However, this pathway often faces political pushback, particularly from states with veto power or those aligned with accused parties.

2- Procedural Challenges and Delays The delayed issuance of warrants marks a rare moment where procedural debates overshadowed substantive legal questions. Member states raised concerns about:

Political Implications: The use of ICC arrest warrants in politically charged conflicts often triggers fears of selective justice or misuse for political leverage.

Fair Trial Concerns: Some states questioned whether the evidence presented to the Pre-Trial Chamber met the standards necessary to justify arrest warrants, potentially undermining due process. 3. International Pushback The opposition of more than 60 ICC member states is a reflection of broader criticisms of the court’s functioning:

Selective Prosecution: Critics argue the ICC disproportionately focuses on weaker states or specific regions, such as Africa, while avoiding scrutiny of powerful nations or their allies.

Jurisdictional Overreach: Many states view the ICC’s actions as encroachments on national sovereignty, particularly when the court asserts jurisdiction over nationals of non-member states through territorial or situational claims. 4. Legal Implications The delays in issuing arrest warrants carry several legal and institutional implications:

Undermining Credibility: The ICC’s credibility may be at stake when member states openly question its jurisdiction and procedural fairness.

Precedent for Future Cases: Prolonged debates could create a precedent for further delays, weakening the ICC’s effectiveness in addressing urgent cases of international crimes.

Critics, however, question the legitimacy of Palestine’s statehood under international law, arguing that the ICC lacks jurisdiction in areas where sovereignty is disputed, such as the West Bank and Gaza Strip.

 This challenge is particularly prominent in the objections raised by Israel and some allied states.

 Oslo Accords and Jurisdictional Limitations: Opponents of the ICC’s jurisdiction argue that the Oslo Accords, which govern Israeli-Palestinian relations, preclude Palestine from exercising jurisdiction over Israeli nationals.

 However, proponents of ICC jurisdiction, including the International Commission of Jurists (ICJ), contend that the Rome Statute supersedes bilateral agreements like the Oslo Accords. They argue that these accords cannot override international law or limit the ICC’s mandate to address grave crimes like war crimes and crimes against humanity. The International Court of Justice (ICJ) issued a significant advisory opinion on July 19, 2024, regarding Israel’s policies and practices in the Occupied Palestinian Territories (OPT), including East Jerusalem.

This advisory opinion was sought by the United Nations General Assembly, which posed questions concerning the legality of Israel’s actions and their implications under international law.

Key aspects of the ICJ’s findings include the following: Jurisdiction and Legal Basis: The ICJ affirmed its jurisdiction to provide the advisory opinion, countering claims that the case was politically motivated or lacked sufficient evidence.

 It emphasized that the issues raised were legal in nature and relevant to the obligations under international law. Unlawful Occupation: The ICJ held that Israel’s prolonged occupation of the OPT, now extending beyond 57 years, is unlawful. It ruled that occupation under international humanitarian law is intended to be temporary, and Israel’s settlement activities and annexationist policies violate both the Fourth Geneva Convention and the Hague Regulations. The court also noted that these actions undermine the Palestinian people’s right to self-determination.

Impact of Oslo Accords and Vienna Convention: The ICJ determined that bilateral agreements, such as the Oslo Accords, do not override fundamental principles of international law, including the prohibition on acquiring territory by force and the duty to respect self-determination. Furthermore, the Court highlighted violations of the Vienna Convention on the Law of Treaties (1969), particularly the principle that treaties must not contravene peremptory norms of international law (jus cogens), such as the prohibition on annexation and forced displacement.

The illegality of treaties endorsed under military occupation arises from the principle that agreements made under coercive circumstances are fundamentally invalid under international law. This issue intersects with critical concepts of erga omnes obligations and jus cogens norms, particularly in the context of the Geneva Conventions and broader international humanitarian law (IHL). Illegality of Treaties under Military Occupation The Principle of Non-Derogability The Vienna Convention on the Law of Treaties (1969) provides a robust legal framework for determining the validity of treaties. Article 53 specifies that a treaty is void if it conflicts with jus cogens norms—peremptory principles of international law from which no derogation is permitted.

Military occupation often gives rise to such conflict, as the occupying power is prohibited from coercing agreements that undermine the rights of the occupied population, particularly their right to self-determination. Under the Geneva Conventions, occupation is a temporary condition, and the occupying power is obligated to manage the territory for the benefit of its civilian population. Agreements that perpetuate or institutionalize occupation, facilitate the annexation of territory, or deprive the occupied people of their fundamental rights violate these norms.

 Treaties made under such conditions are considered “Lion Treaties”—agreements that favor the stronger party and compel the weaker one under duress. Examples of Void Agreements.

1. Oslo Accords: Critics argue that the Oslo Accords, signed between Israel and the Palestinian Liberation Organization (PLO), fail to meet the standards of free and equal negotiations. These accords effectively fragmented the Palestinian territories and entrenched Israeli administrative control in ways that contravened the prohibition on acquiring territory by force. 2. Coerced Resource Agreements: In some occupied regions, treaties have facilitated the exploitation of natural resources, disproportionately benefiting the occupying power. Such agreements violate the Hague Regulations and the Fourth Geneva Convention, which restrict the exploitation of resources in occupied territories to benefit only the local population.

 Erga Omnes Obligations and Jus Cogens Norms Erga Omnes Obligations The concept of erga omnes obligations, affirmed by the International Court of Justice (ICJ) in cases like the Barcelona Traction case (1970), denotes duties owed by states to the international community as a whole.

The prohibition on annexation, forced displacement, and systemic violations of self-determination are among these obligations. In situations of occupation, the international community has a collective responsibility to prevent and respond to violations of erga omnes obligations. States are expected not to recognize treaties or arrangements that perpetuate illegal occupations or infringe on the self-determination of an occupied population.

 Jus Cogens and the Geneva Conventions Jus cogens norms are higher-order legal principles that cannot be overridden by any treaty or agreement. In the context of occupation, these norms include:

1- Prohibition on Acquisition of Territory by Force: Enshrined in the UN Charter and reaffirmed by ICJ advisory opinions, this principle renders any treaty facilitating annexation void.

2- Prohibition on Forced Displacement and Settlements: Article 49 of the Fourth Geneva Convention explicitly prohibits the transfer of the occupying power’s civilian population into occupied territories. Any treaty endorsing or normalizing such practices is inherently illegal.

3- Right to Self-Determination: Recognized as jus cogens, this principle underscores the illegality of treaties that deny an occupied people their right to govern themselves.

 ICJ’s Role in Reinforcing Norms The ICJ has repeatedly affirmed the primacy of jus cogens norms and erga omnes obligations in contexts of occupation:

 In its 2004 advisory opinion on the Separation Wall, the ICJ held that Israeli actions in the OPT, including settlement policies, violated both erga omnes obligations and jus cogens norms.

The 2024 advisory opinion extended these conclusions, declaring that the prolonged nature of Israel’s occupation itself had become illegal, underscoring the invalidity of any agreements made to sustain it Legal Consequences for Endorsed Treaties contravening jus cogens norms and erga omnes obligations face multiple legal consequences:

1- Invalidation: Such treaties are null and void ab initio, meaning they have no legal effect from the outset.

2- Non-Recognition by Third States: States have a duty not to recognize or support arrangements that contravene these principles, as affirmed in the ICJ’s Namibia advisory opinion (1971).

3- Obligation to Remedy: The occupying power may be required to dismantle structures established under such treaties and provide reparations for violations. Conclusion The illegality of treaties endorsed under military occupation stems from the conflict between such agreements and foundational principles of international law.

Jus cogens norms and erga omnes obligations operate as safeguards to prevent the legitimization of coercive arrangements. The ICJ’s consistent reinforcement of these norms underscores the international community’s responsibility to uphold them, ensuring that occupation does not translate into enduring subjugation or exploitation.

 ICJ’s View on Fragmentation: The ICJ reaffirmed the territorial unity of the OPT, including East Jerusalem and Gaza, rejecting attempts to treat these areas differently.

 It declared that any fragmentation undermines the territorial integrity of Palestine and the applicability of international law. Implied Consent Through UN Membership: Some legal scholars argue that Israel, as a United Nations member, implicitly consents to the jurisdiction of international bodies like the ICC under specific conditions.

In conclusion, the International Criminal Court (ICC) rejected the legally unsubstantiated objections and memoranda presented by over 60 member states contesting the court’s jurisdiction over Israeli nationals. This decision upholds the core humanitarian values enshrined in the Rome Statute, emphasizing the ICC’s mission to combat international crimes, promote justice, and deter the gravest offenses against humanity. By reaffirming its mandate, the ICC reinforces its commitment to maintaining international peace and security while ensuring accountability for crimes that pose severe threats to humanity. This decision underscores the ICC’s role as a bulwark against impunity and a guardian of global justice.