How does Israel justify the inapplicability of the human rights conventions it has signed to the West Bank?

Answer 1

Israel applies whatever rights that it is able to. But as long as its citizens are the targets of daily terror attacks, it is compelled, against its will, to impose tight security, especially in vulnerable and outlying regions such as the West Bank. See also:

What about the Palestinians that have been killed?

Answer 2

There are numerous different protocols and Human Rights conventions to which Israel is a signatory and, consequently numerous accusations of Israel's failure to live up to the terms of such documents. Since it would be impractical to address every single possible argument, I will choose the three most commonly cited arguments that hold that Israel is in violation of Human Rights norms and the Israeli response to these accusations.

1) Fourth Geneva Convention (of 1949), Article 49
Relevant Passage: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Accusation: By placing allowing for the development of the West Bank Israeli Settlements, Israel is serving as an occupying power that is transferring parts of its own civilian population into the occupied territory of the West Bank, violating Article 49.

Israeli Response: Whenever looking at a treaty, it is important to look at the surrounding factors for clarity as to why it has the wording it does. The Fourth Geneva Convention was passed in the wake of World War II, when the Nazis had enforced a policy of Lebensraum. Lebensraum was the idea that the Nazi German government would transport Germans from Germany to the territory of neighboring occupied countries, like Poland, in order to "Germanify" the territory. The Nazi government organized the transport, selected the persons who would be migrating, built the infrastructure to complete the transport, and assembled the new "German towns" that these people would be moving to. In short, this was a government subsidized transfer of population. It is this kind of event that Article 49 is referring to. Lest it be misunderstood that this is a uniquely Nazi German phenomenon, this behavior has been manifest since the ratification of the Fourth Geneva Convention in the Moroccan population transfers to Western Sahara (1975 to Present), the Turkish population transfers to Northern Cyprus (1973 to Present), and the Indonesian population transfers to East Timor (1975-1999).

However, the Israeli Settlements are not government-sponsored population transfers. The Israeli government does not select the persons who will go to the settlements. It does not construct the settlements. It only builds roads to the Settlements after they have been populated and it does not build any of the homes that the Settlers live in. The Israeli Settlements are an organic development as people want to buy land in the West Bank or connect spiritually to Jewish history, much of which happened in the West Bank. This movement of persons freely to occupied territories was not envisaged in the Fourth Geneva Convention, so Israel has nothing to apologize for in this regard.


2) United Nations General Assembly Resolution 194, Article 11 & Universal Declaration of Human Rights Article 13
Relevant Passage: Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date...

AND

(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Accusation: By forbidding Palestinians from returning to their homes, Israel is both violating the International Declaration of Human Rights generally and the provisions of the UNGA Resolution 194, Israel is abridging the rights of the Palestinians.

Israeli Response: Every country that has signed the UDHR is well-aware that this document is an aspirational document, meaning that it sets out rights that countries theoretically should implement, but are not required to. If Article 13 were literally implemented, no country would be able to use an Immigration policy that in any way limited which people could immigrate to the country, since this would bar anyone from having residence in the border of the desired state. As a result, Israel's failure to literally implement this section of the UDHR is no different than the US, UK, France, Germany, Japan, China, and every other country because they all choose to permit and exclude certain persons for residency.

As for UNGA Resolution 194 Article 11, which is more on point, let us, momentarily ignore that the passage can be read to apply to Jewish Refugees who fled the Arab militaries when the West Bank and East Jerusalem were overrun and was never even considered by the Jordanian Occupiers to be valid. The main issue here is that the refugees must not only (1) wish to return to their homes, but (2) must be willing to live in peace with their neighbors. The Palestinian people (as a collective) and their governmental representatives have consistently advocated and perpetrated violence against the Israeli people. Accordingly, they do not fit the definition of a refugee who will live at peace with his neighbors and Israel has no duty to implement this Article of the UNGA Resolution.

3) International Covenant on Civil and Political Rights, Article 14
Relevant Passage: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..

Accusation: Unlike Israeli citizens who are subject to civil trials, which qualify under this Convention, most Palestinians who fall under the Israeli Occupation are subject to Military Tribunals.

Israeli Response: The International Covenant on Civil and Political Rights applies to general civil situations, which is why, as a signatory, Israel provides impartial tribunals for its citizens, both Jewish, ethnic Palestinian, and other minorities. However, in the question of a military occupation, the Fourth Geneva Convention establishes the valid principles for administering the court system of an occupied territory like the West Bank. The relevant Articles of Fourth Geneva Convention are Article 66, and by reference, Article 64. Israel follows Article 66 to the letter. The relevant portions of both Articles are below.

Art. 64. The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention...

Art. 66. In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of Article 64 the Occupying Power may hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied country.

Notice that the situation of Article 64 matches the Israeli situation perfectly, the laws in the West Bank and the behavior of the Palestinians presented a security threat to the Israelis, permitting a repeal or suspension of local penal laws. Under Article 66, once this suspension is performed, Israel has the right to constitute military tribunals in the West Bank with Courts of Appeal located in Israeli territory. Israel has done exactly that, placing military tribunals exclusively in the West Bank and having the Israeli Supreme Court (in Israel proper) serve as a court of appeal for redress of grievances issuing from the military tribunals. In contrast to the naive Human Rights advocate who improperly cites a general convention as opposed to a contradictory specific convention, Israel follows all of its obligations in this specific instance.