Enforcement of International Humanitarian Law in the Occupied Palestinian Territory Where Do We Go from Here?

[Mona Rishmawi is an international human rights lawyer and a former senior UN official. She worked in several conflict contexts including the Democratic Republic of Congo, Iraq, Libya, the Occupied Palestinian Territory, Sri Lanka, Sudan, and Syria.]

This post is written in the author’s personal capacity.

Israel has resumed pounding Gaza. Civilian casualties are mounting, and humanitarian assistance once again is weaponized. In the West Bank, Israeli settlements are expanding and the vicious attacks by Israeli settlers and soldiers are increasing. Meanwhile, restrictions, house demolitions and displacement continue and the fear of de jure Israeli annexation of parts or of all Palestinian Territory occupied since 1967 (OPT) is growing. 

The ceasefire agreements between Israel and Hamas have resulted in the release of 147 hostages and 4 bodies out of the 251 Israeli hostages and foreign nationals held by Hamas and other armed groups. Only 8 hostages were released as a result of Israeli military operations. The phased releases were mostly in exchange for Palestinian prisoners and detainees. Israel has committed to freeing around 1,900 Palestinians out of the more than 12,000 it currently holds but has yet to release them all.  

In this grim moment, States have just missed an important opportunity to reaffirm respect for a rules-based order. On 6 March 2025, Switzerland announced that the Conference of the High Contracted Parties to the Fourth Geneva Convention on measures to enforce the Convention in the Occupied Palestinian Territory (OPT), which was scheduled to take place the next day, would not be convened. It cited a lack of consensus and “profound differences” between States. The failure to convene the Conference is a step in the wrong direction. 

This piece argues that the cancellation of the Conference may contribute to the indifference towards the lack of respect for IHL, not only in the OPT but also in other armed conflicts. It will also provide an update on a related development concerning another international conference. 

Background   

On 18 September 2024, the UN General Assembly (GA) adopted resolution ES-10/24 outlining a concrete roadmap for the implementation of the landmark Advisory Opinion issued by the International Court of Justice (ICJ) Advisory Opinion in July 2024 clarifying the legal consequences of the continued Israeli occupation of the West Bank, including East Jerusalem, and the Gaza Strip. 

Paragraph 12 of the GA resolution invited Switzerland, as the depositary of the Geneva Conventions, to convene a Conference of High Contracting Parties on the Fourth Geneva Convention with a focus on measures to enforce the Convention in the OPT, and “to ensure respect thereof in accordance with common article 1 of the four Geneva Conventions.” Switzerland was to convene the Conference within six months of the adoption of the resolution. 

This would have been the fourth such conference on the Fourth Geneva Convention in the OPT. The three previous meetings took place in 1999 and were reconvened in 2001 and 2014. As described by M. Lanz, E. Max and O. Hoehne, these Conferences were typically preceded by lengthy consultations, which were sometimes suspended for years. For instance, the first such conference was requested in 1997 and only took place in 1999. 

The 2024 GA resolution requesting the Conference was adopted with 124 votes in favour, 14 against (including the US and Israel), and 43 abstentions. Switzerland abstained, unlike other European States such as Belgium, Finland, France, Greece, Iceland, Luxembourg, Monaco, Norway and Slovenia, which voted in favour of the resolution.

On 14 November 2024, about two months after the adoption of the GA resolution, Switzerland publicly indicated that it was working to organize the Conference. But on 6 March 2025, it announced that the Conference “will not take place”, citing lack of consensus and “profound differences” between States. The cancellation of the Conference was sharply criticized by several experts.  

Some Reflections on the Cancellation

Requesting a meeting to enforce a Convention reflects a belief in its provisions and overall objectives. It should be encouraged and celebrated as a diplomatic means of addressing a problem. Therefore, the cancellation of the meeting of the High Contracting Parties of the Fourth Geneva Convention in the OPT creates some anxiety. 

First, the suppression of a meaningful discussion of the implementation of the Geneva Conventions may diminish the significance of the IHL breaches, not only in the OPT, but beyond, particularly in the current transactional international atmosphere. At a time when victims of war increasingly doubt IHL’s ability to protect them, the need for initiatives to reaffirm international law are more important than ever. Such a Conference could have reinforced the global commitment to the protections enshrined in the Geneva Convention. When most States stand firmly behind the rules, their implementation become more likely. A diplomatic effort to seek compliance of IHL could have served as a model for galvanizing support for the Geneva Conventions in other serious armed conflict contexts, such as those in Ukraine and Sudan. 

Second, the structural gaps in IHL implementation are now more exposed. It has never been easy to adopt measures to enforce the 1949 Geneva Conventions and their Additional Protocols. While they include strong provisions for the prosecution of grave breaches, these instruments have structural limitations regarding the modalities of implementation. Unlike other modern treaties, they do not contain conflict resolution clauses for disputes over the interpretation or the implementation of their provisions. There is also no IHL reporting mechanism or peer review process to assess compliance. 

The UN human rights processes help fill some of the protection gaps, while IHL is largely left to ground-level implementation, dependent on the whim of the parties. The absence of a “dedicated platform for regular dialogue and cooperation among States on international humanitarian law issues” was recognized in the closing remarks of the 2015 Concluding Report submitted to the 32nd International Conference of the Red Cross and Red Crescent (ICRC), following a four-year process on Strengthening compliance with international humanitarian law organized by the Swiss Federal Government and ICRC. Had such a platform existed, the need for special High Contracting Parties’ meetings requested by the UN General Assembly might not have arisen. 

Third, in this context, the leadership role of the depositary in seeking the enforcement of the rules becomes even more critical. As the depositary to the Geneva Conventions, Switzerland regularly asserts that its commitment to the Conventions is a priority of its foreign policy and is representative of its long-standing humanitarian tradition. Indeed, Switzerland has traditionally not relegated its role to that of a mere archivist, a secretary, or a notary of the treaties, storing instruments of signatures of accession, or translations into national languages. It has championed the Geneva Conventions and their Protocols and commendably sought to strengthen compliance with IHL as mentioned earlier. But there are expectations that it should do more. In this case, it may have been a tall order to demand a consensus in this charged international environment. In any case, if Switzerland felt that it reached the end of line in the consultations for the March 2025 Conference, it could have prolonged the discussion for another week or suspended the process, as it did before, rather than cancelling the meeting. This would have been a better option.

Fourth, the High Contracting Parties Conference could have added to our understanding of Common Article 1 of the Geneva Conventions. The GA resolution concerning the Conference invokes this significant provision. Identical across the four Conventions, it states: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” 

As the ICRC affirms in its 2016 Commentary on the First Geneva Convention, and the 2020 Commentary on the Third Geneva Convention, the Conventions establish obligations erga omnes partes, i.e. obligations owed to all of the other High Contracting Parties. While acknowledging that the phrase “ensure respect” has been subject to debate, the ICRC asserts that the words “respect and ensure respect” are not merely stylistic additions. They reflect the recognition by States of the necessity of adopting all reasonable measures to prevent violations from happening in the first place. This duty applies not only to international armed conflicts including occupation such as those in Palestine and Ukraine, but also to non-international armed conflicts under Common Article 3 of the Conventions, such as Sudan’s. 

The ICRC Commentaries further emphasised that this provision requires each High Contracting Party not only to ensure its own compliance with the Conventions but also mandates States to take steps to ensure compliance by others involved in armed conflict. The duty to ensure respect involves both a negative and a positive obligation. The negative obligation requires that High Contracting Parties may neither encourage, nor aid or assist in violations of the Conventions by Parties to a conflict. The positive obligation means that they must take all reasonable measures to prevent and bring an end to such violations. Translating these principles into action in the context of a particular conflict can only help give meaningful support to IHL. Concrete measures nudging IHL implementation and framed around common article 1 are desperately needed for situations of international armed conflict and occupation like those in Palestine and Ukraine, but also for non-international armed conflict like Sudan.

The ICRC position has been reinforced by the ICJ in its Palestine Advisory Opinion. Paragraph 279 asserted that “… all the States parties to the Fourth Geneva Convention have the obligation, while respecting the Charter of the United Nations and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” The Conference of the High Contracting Parties would have given the opportunity to spell out what this paragraph means in practice.

Forthcoming International Conference on the Two-State Solution 

States will have another opportunity to revisit the situation in the OPT in June 2025. In paragraph 13 of the resolution, the GA decided “to convene … an international conference under the auspices of the Assembly for the implementation of the United Nations resolutions pertaining to the question of Palestine and the two-State solution for the achievement of a just, lasting and comprehensive peace in the Middle East.” The UN Secretary-General indicated in his report to the GA (paragraph 16) that the conference will be held in New York and will be co-chaired by France and Saudi Arabia.

Achieving a just, lasting and comprehensive peace in the Middle East will have to address the reality on the ground in the West Bank and Gaza Strip. In addition to the IHL questions related to the conduct of hostilities and occupation, the International Conference will have to tackle the ICJ provisional measures in the South Africa v. Israel genocide case, the International Criminal Court (ICC) arrest warrants, the question of self-determination, and the issue of systematic discrimination or apartheid. Here four comments are worth making. 

First, the Conference can reinforce the need to implement judicial decisions. Concerning the ICJ provisional measures, the GA has been able to exert pressure on States to bring their conduct into conformity with international law. A useful paper, published in 2022, demonstrates how provisional measures under the Convention on the Prevention and Punishment of the Crime of Genocide have inspired action in the GA including in cases such as Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) and Ukraine v. Russian Federation. Such orders provide a preliminary judicial assessment on the issues and therefore serve as an important point of reference in framing matters and for considering remedial action. The provisional measures orders issued in the case South Africa v. Israel are no exception. 

The GA could play a pivotal role in affirming the need to uphold the international rule of law by also seeking support for the ICC as an institution and by calling for cooperation with its arrest warrants. It can further encourage prosecution under the Geneva Conventions and the UN Torture Convention. 

Second, there has been much discussion about how to describe the situation in the West Bank, is it systematic discrimination or apartheid? A recent report by the Office of the UN High Commissioner for Human Rights documented the scale of Israel’s settlement policy, its acts of annexation, and related discriminatory legislation and measures, all of which the ICJ has affirmed in its Advisory Opinion as being contrary to international law. The report provides statistics that offer further evidence supporting what the ICJ described as a “régime of comprehensive restrictions” imposed by Israel on Palestinians in the Occupied Palestinian Territory, which “constitutes systemic discrimination” on the basis of race, religion or ethnic origin. (Paragraph 223 of the Advisory Opinion). It specifies, for instance, that in 12 months beginning 1 November 2023, the Israeli Government has taken steps towards implementing plans to construct over 20,000 housing units in new or existing Israeli settlements in East Jerusalem alone, while 214 Palestinian properties and structures have been demolished in East Jerusalem. These facts move the needle towards the prohibited acts of segregation and apartheid, in addition to the IHL prohibitions and grave breaches.

Third, in its Advisory Opinion, the ICJ invoked Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). This provision reads: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” 

There are different legal consequences for using the terms “segregation” or “apartheid” and the Separate Opinions of Judges Salam and Tladi clearly support the apartheid classification. As the Separate Opinion of Judge Iwasawa states, apartheid is both a violation of international human rights law and an international crime, and thus may entail State responsibility and individual criminal responsibility. Apartheid is covered by a specific convention and under the Rome Statute. It involves deliberate policies designed to enforce racial domination and systematic oppression. As Judge Salam explains, “there can be no doubt that the prohibition of apartheid is a customary norm, that is recognized as a peremptory norm from which no derogation is possible and whose violation constitutes a crime against humanity.” 

In contrast, racial segregation may occur without such intent, arising from social, economic, or political factors, but still resulting in prohibited discriminatory outcomes. In August 2024, the ad hoc conciliation commission established by the CERD Committee noted the “worrying assessment made by several United Nations bodies regarding segregation between Palestinians and Israelis as part of policies and practices imposed by Israel through two separate legal systems, road separation and movement restrictions, among other means.” It stated that it “is of the view that those acts may amount to a situation of apartheid if no action is taken by Israel to effectively address the issues raised.” (Paragraph 11). Such warnings from international bodies feed into establishing the criminal intent for the crime of apartheid.

Fourth, the GA also requested the Secretary-General to “present proposals … for the establishment of a mechanism to follow up on the violations by Israel of article 3 of the CERD identified by ICJ in its advisory opinion.” In his report to the GA (paragraph 18) the Secretary-General presented two options: either to establish “a stand alone mechanism based on the model of the United Nations Special Committee against Apartheid as established by the General Assembly in its resolution 1761 (XVII) and reinforced in subsequent resolutions, notably resolution 2671 (XXV)”, or to provide a mandate to the Independent International Commission of Inquiry on the Occupied Palestinian Territory. Either option would help taking the matter forward.  

Conclusion

The cancellation of the Conference on the Fourth Geneva Convention weakens efforts to uphold international humanitarian law, not only in the Occupied Palestinian Territory but also in other conflicts. It highlights structural enforcement gaps and raises concerns about political pressures. Switzerland, as the depositary, had options short of cancellation. The upcoming UN Conference on the Two-State Solution offers another opportunity for action to stop the suffering of civilians and achieve a sustainable peace based on justice. The leaders who accomplish this result would truly deserve the Nobel Prize.