Responsibility

This concept refers to the duties of states and political entities based on international law.

Definition

The concept of "responsibility" refers to duties of states and political entities based on agreements or international customs, norms or law.

Within this definition, the Re'ut Institute has identified two contexts in which the concept of Responsibility is relevant:

  1. Responsibility in the context of Partnership;
  2. Responsibility in the context of state of occupation or end of occupation).

Responsibility in the Context of Partnership

Background

The issues of whether Israel has a partner and under what conditions Israel should negotiate with the Palestinians have been recurring themes in Israeli-Palestinian relations.

Factual input about Palestinian statements, decisions or actions provide insufficient value to Israeli decision-makers when they consider whether to engage the other party through negotiations in an accross-the-table strategy, as opposed to pursuing an off-the-table strategy.

The Reut Institute offers a set of concepts and analysis that aspires to provide Israeli decision-makers with a conceptual framework in this regard (see the document: What Makes an Israeli-Palestinian Partnership?).

Responsibility in the context of partnership can arise either from:

  • Inherent duties – A political entity by virtue of its status as a state is subject to inherent duties. Non-state actors are also subject to duties although to a lesser degree.
  • Many of the duties1 of states are set forth by the Montevideo Convention on the Rights and Duties of States2 and by the Charter of the United Nations.3

or from

  • Agreements - A political entity's obligations under a treaty to which it is a party become its legal responsibilities.

or from

  • International law – conventions, treaties, customs or norms – A political entity may also be bound by its ratification of multilateral conventions or by membership in international organizations.

For example, relevant conventions to the Israeli-Palestinian conflict include the International Covenant on Civil and Political Rights (which includes the right to Self-Determination) and the Fourth Geneva Convention4 (see below). The Euro-Mediterranean Partnership (Barcelona Declaration) is another important document, though its provisions are not legally binding.

For further reference to the issue of what makes a partnership, see the following concepts and diagram:

Partnership - refers to a situation in which two or more political entities are partners, i.e. share a common objective and have the capacity to effectuate their respective parts in the service of that objective.

PartnerIn a given context, a Partner is a political entity who has the delivery capability, will, and legitimacy to take part in a political process;

Will – refers to readiness of a political entity to take part in a political act;

Delivery capability – refers to the carrying capacity of a political entity and/or its Responsibility according to international law;

Carrying capacity– refers to a party's ability to implement the policies it wishes to pursue in a particular context.

Responsibility in the Context of a State of Occupation

Background

The Responsibility of a political entity which is an occupying power has two possible definitions: Responsibility – the Formal View – The obligations that an occupying power has under established principles of international law (defined principally by the Fourth Geneva Convention) to provide for the civic well-being of occupied people and territory, including various aspects of economics, health, infrastructure and labor conditions.

  • Responsibility – the Viability View – An obligation that, according to some, at least implicitly, an occupying or former occupying power has to ensure the economic and political “viability” of occupied or formerly occupied territory as part of its transition to statehood. The obligation under the Viability View is in addition to the obligations prescribed by the Formal View (See the Concept of a Viable Palestinian state).

  • Responsibility of an Occupier - the Formal View - The Formal View of an occupier's responsibility is linked to occupation, formally understood. It looks to established principles of international law to determine the Responsibilities of an occupying power over occupied territory. Under this definition, Responsibilities of an occupying party are set forth in the Fourth Geneva Convention – a multilateral agreement, which has become a set of international customs and norms. They include several positive Responsibilities (i.e. actions the occupying power must take), which include:
    • humane treatment of people in occupied territory;
    • facilitation of proper working of schools and institutions of care for children;
    • ensuring that the population receives medical supplies, hospitals and humanitarian relief;
    • enabling freedom of religious practice;
    • allowing the population to apply its own criminal law; and
    • maintaining courts.

In addition, the Fourth Geneva Convention contains negative Responsibilities (i.e. actions the occupying power must not take), which include:

    • not forcing people into military service or to work;
    • not destroying property belonging to persons in the territory;
    • not taking security measures unless necessary as a result of the war;
    • not exercising coercion;
    • not punishing persons for offenses they have not committed;
    • not forcibly transferring or deporting people from the occupied territory or its own civilian population into the occupied territory; and
    • not interning people without criminal trials and convictions unless the security of the occupying power makes it absolutely necessary.

Responsibility of an Occupier – the Viability View

In the context of the Israeli-Palestinian conflict, some urge, at least implicitly, an extension of the concept of Responsibility beyond the formal rules of occupation under the Fourth Geneva Convention to a requirement that Israel ensure the economic and political viability of Palestinian territory in its move toward statehood.5

Under the Viability View, Israel's obligation to ensure the viability of the Palestinian state would continue even after a) the Palestinian entity meets the four criteria of statehood under international law, b) the end of Israel's permanent military and civilian presence in Palestinian territories and c) beyond a formal end of occupation by Israel.

This may be seen as developing a new international custom or norm: In moving toward the establishment of a Palestinian state, Israel is being held responsible for what seems to be a fifth criteria of statehood.

For further reference please see Concept of a Viable Palestinian State, and related concepts and terms End of Responsibility, State of Occupation, End of Occupation, State of Conflict, End of Conflict and Finality of Claims.

Key Provisions of the Fourth Geneva Convention
Regarding Responsibility of an Occupier

Under the convention, the Responsibilities of an occupier include:

Humane treatment of people in occupied territory: People in occupied territory “are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated.” Women shall be protected against attack, including rape and enforced prostitution. The occupying power shall treat all people in the occupied territory “without any adverse distinction based, in particular, on race, religion or political opinion.”

Schools: The occupying power shall facilitate the proper working of schools and institutions of care for children.”6

Medical supplies, hospitals, and humanitarian relief: To the fullest extent available to it, the occupying power has the duty to ensure that the population of the territory receives food and medical supplies; with the cooperation of local authorities, to maintain medical and hospital establishments in the territory; and to allow humanitarian relief schemes to operate.7

Religious practice: The occupying power shall permit ministers of religion to give spiritual assistance to people in the territory.8

Criminal laws: The occupying power shall allow the people in the territory to continue to apply their criminal laws, unless doing so would threaten security or the operation of the Fourth Geneva Convention, and may impose its own criminal laws, if essential.9

Courts and court procedures: The occupying power shall maintain courts and provide procedural protections to people charged with criminal violations.10

Forcing people into military service or to work: The occupying power may not force people in the territory to serve in the occupying power’s military. The occupying power may force people in the territory to work under certain circumstances.11

Destruction of property: The occupying power may not destroy property belonging to people in the territory “except where such destruction is rendered absolutely necessary by military operations."12

Security measures: An occupying power “may take such measures of control and security in regard to protected persons [i.e., the people of occupied territory] as may be necessary as a result of the war.”13

Use of coercion: “No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them of from their parties.”14

Collective punishment and reprisals: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” “Reprisals against all protected persons and their property are prohibited.”15

Transfers of people: The occupying power may not forcibly transfer or deport people, whether individually or in mass, from the occupied territory, although it may engage in certain “evacuations” for security or imperative military reasons.16

“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”18

Internment: “[I]f the security of the Detaining [Occupying] Power makes it absolutely necessary,” the occupying power may intern people without the need for individual criminal trials and convictions.19



1 Under current International law these treaties enjoy the status of customary law, i.e. their applicability does not necessitate a state's signature and ratification. See: Malcolm N. Shaw, International Law (Cambridge, U.K.: Cambridge University Press, 2003) (Fifth Edition), p. 178.

2 These duties include e.g. not to intervene in internal or external affairs of another [state] (art. 8); to settle disputes by "recognized pacific methods (art. 10); not to recognize territorial acquisitions or special advantages, which have been obtained by force (art. 11). For the full text please see Montevideo Convention on the Rights and Duties of States, entered into force Dec. 26, 1934.

3 These duties include e.g. to settle their disputes by peaceful means (art. 2(3)); use of force is permitted through limited exceptions for a) action approved by the Security Council (arts. 39-39) and b) self-defense (art. 51)); or to refrain from the threat or use of force (art. 2(4)).

4 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949; entered into force October 21, 1950).

5 See, e.g., Aix Group, Economic Road Map – An Israeli-Palestinian Perspective on Permanent Status, (Jan. 2004), summarized in Business and Economics Unit of the Peres Center for Peace, "Future Economic Relations Between Israel and Palestine" at p. 5 (June 2004) (explaining the importance for "Israelis in particular . . . to support a sustainable process of economic convergence [i.e., success]" for Gaza after disengagement); Pres. George W. Bush in speech in Washington, DC on June 24, 2002, quoted here ("I challenge Israel to take concrete steps to support the emergence of a viable, credible Palestinian state");

Leila Farsakh, "Economic Viability of a Palestinian State in the West Bank and Gaza Strip: Is It Possible Without Territorial Integrity and Sovereignty?" (The MIT Electronic Journal of Middle East Studies, Vol. 1, 5/01), reproduced at http://web.mit.edu/cis/www/mitejmes/intro.htm ("the establishment of an economically viable state in the West Bank and the Gaza Strip means that a number of conditions need to be meet congruently"; identifying conditions that Israel must meet).

6 Fourth Geneva Convention, art. 27.

7 Id., art. 50.

8 Id., arts. 55, 56 & 59-63.

9 Id., art. 58.

10 Id., art. 64.

11 Id., arts. 68-77.

12 Id., art. 51.

13 Id., art. 53.

14 Id., art. 27; see also, e.g., id., art. 4

(individuals “definitely suspected of or engaged in activities hostile to the security of” the occupying power are not entitled to the protections of the Fourth Geneva Convention if providing those protections would “be prejudicial to the security of” the occupying power); id., art. 64 (the occupying power may “subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them”).

15 Id., art. 31.

16 Id., art. 33.

17 Id., art. 49.

18 Id., art.

19 Id., art. 42; see also id., arts. 41, 43 & 78;

see also id., Section IV (articles 79-135) (“Regulations for the Treatment of Internees”).