State Dept. May Well Be Trying to Abrogate the Fourth Geneva Convention, Turning Gaza and the West Bank into Free-Fire Zones

Nov 10, 2023

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Today, I followed up on my questioning from Wednesday.

Again, the State Department would not say directly if they recognized the Fourth Geneva Convention as applying to the West Bank and Gaza.

The Fourth Geneva Convention is the bedrock of rights for people living under occupation.

The remarks from the State Department today by Principal Deputy Spokesperson Vedant Patel led law professor Francis Boyle to comment: “This sounds pretty ominous to me in that it seems the Bidenites are going along with Israel turning Gaza into a free-fire zone.”

If the administration is tacitly claiming that the Fourth Geneva Convention [PDF] does not apply to the West Bank and Gaza, then any calls by the administration to abide by “international law” may be a cruel joke. I repeatedly asked at the end of my questioning: “Which law?” the administration means when they talk about international law (transcript below) and never received a response. Instead, Patel threatened to ask me “to leave” for attempting to insist on a response.

The lack of a clear “yes” or “no” led to some confusion. It has been long-standing US policy, most notably articulated in the Hansell memorandum [PDF] from 1978 to apply the Fourth Geneva Convention to the West Bank and Gaza. Law professor John Quigley, notes that:

In para. 4 Hansell refutes Israel’s argument that the Convention does not apply. And he says it does apply.
In para. 2 Hansell refutes Israel’s arguments on the legality of settlements

However, Mike Pompeo, while he was Secretary of State in the Trump administration, said: “We’re recognizing that these settlements don’t inherently violate international law. That is important. We’re disavowing the deeply flawed 1978 Hansell memo, and we’re returning to a balanced and sober Reagan-era approach.”

Quigley said that Pompeo’s statement “relates only to the legality of settlements. Pompeo refers to Reagan on that issue. As far as I can tell, Pompeo did not disavow what the Hansell memo says about the Fourth Geneva Convention.”

Patel noted that: “We have had no change in policy as it relates to the Hansell memo.”

Quigley interpreted Patel’s remarks as saying the State Department “is sticking with the Hansell memo. But Quigley notes that Patel did not follow up and say anything like ‘Of course G4 applies.’”

However, Patel added that the Hansell memo is “something that Matt [Miller] has spoken to a number of months ago as well.” Matt Lee of the AP asked Miller in July: “Why don’t you reinstate the findings of the determination of the Hansell memorandum about the legality or the legitimacy of settlements?” This led some to argue that the Biden-Blinken State Department has abrogated the Hansel memo and the Fourth Geneva Convention with it.

Thus, some argued that Patel’s “no change” remark means no change from the Pompeo policy.

Professor Francis Boyle argued: “Patel made it clear that there has been no change in policy—the Fourth Geneva Convention does not apply to occupied Palestinian territory including Gaza as far as the US government is concerned, continuing with the Trump/Pompeo Policy. Patel just did not want to say it outright. So basically the Bidenites have given the Israelis the proverbial green light to negate the Fourth Geneva Convention in Gaza and also the West Bank and also East Jerusalem. As far as the Bidenites and the Israelis are concerned, the Palestinians are no longer ‘protected persons’ within the meaning of the Fourth Geneva Convention. The Fourth Geneva Convention of 1949 was originally adopted in reaction to and to prevent again the Nazi Atrocities against Civilians living in Occupied Territories. God protect the Palestinians!”

Regardless, Boyle has been urging that one remaining avenue of legal redress may be countries to apply the Genocide Convention at the International Court of Justice — also knowns as the World Court. If a country were to invoke the convention in an emergency process, that could produce legal results. While other lawyers seeking to protect the Palestinians have been trying to petition the International Criminal Court, which neither the US nor Israel are parties to.

The blockage in terms of invoking the Genocide Convention at the World Court may be that Abbas is unwilling to do so, even though he has called what Israel is doing “genocide”.

See my questioning from Monday:

“State Department Claims They Are Not Pressuring Abbas Against Invoking the Genocide Convention; Is Put on Notice Regarding Their Own Complicity Under the Convention” as well as my piece “Israel's Incremental Genocide and Its Genocidal Moment: Finally Time for the World to Use the Genocide Convention?”

Transcript:

HUSSEINI: Thank you. You just said you’re for a durable peace and security and you want Israel to abide by international law. I’m going to pick up right where I left off yesterday: Does the U.S. recognize the Fourth Geneva Convention as applying to Gaza and the West Bank?

PATEL: Sam, I am not going to get into the specifics of the legal aspects of this. I would have to double-check for you. But what I will just say is that we have made clear --

HUSSEINI: I don’t want to take up a lot of time if we’re going to just repeat --

PATEL: Great, we can --

HUSSEINI: No, no, no, I mean I’d like to move on if we’re --

PATEL: Okay, wonderful.

HUSSEINI: -- if you’re just going to repeat. The – it has been longstanding U.S. policy that the Fourth Geneva Convention does apply; indeed, if the Fourth Geneva Convention doesn’t apply, it’s not clear to me what legal constraints there are on Israel. The Hansell Memo was issued by Cyrus Vance when he was secretary of state. That was U.S. policy, that’s been U.S. policy. Pompeo seems to have said we’re not going to abide by this. Has this – has this State Department, has the Biden-Blinken State Department, effectively abrogated decades of U.S. policy and adopted the Pompeo policy on this question?

PATEL: I am not sure what you’re – what you’re referring to. But I --

HUSSEINI: Okay. But the Hansell Memo is --

PATEL: I understand what the Hansell Memo is, but I’m asking what you --

HUSSEINI: You do? Okay.

PATEL: Your question --

HUSSEINI: Does it still apply? Does this State Department still abide by the Hansell Memo?

PATEL: We have had no change in policy as it relates to the Hansell Memo —

HUSSEINI: You have —

PATEL: —which is something that Matt has spoken to a number of months ago as well.

HUSSEINI: So --

PATEL: But let me just reiterate, Sam, that this – we have from the forefront of this conflict, we have talked about very clearly the need for ensuring that this military operation is conducted in accordance with international law. That’s something we can continue to talk about.

HUSSEINI: But which law? You won’t say what you’ll abide by —

PATEL: We continue to abide by that today.

HUSSEINI: But which law? Which law? The Fourth Geneva Convention or not?

PATEL: Go ahead, Alex.

HUSSEINI: Which law? It’s a free-fire zone if you’re not going to abide by the Fourth Geneva Convention. Which law?

PATEL: Go ahead, Alex.

HUSSEINI: You’re creating the legal construct for a – for --

PATEL: Sam, we’ve taken two of your – if you’re going to interrupt your colleagues, I’m going to ask you to leave.

HUSSEINI: No, no; I’m interrupting you. (Laughter.)

PATEL: I – your – the rest of the room has questions that would like to get to. I’ve taken your --

HUSSEINI: I’m sure they do, but the --

PATEL: I’ve taken your question every day of this week.

HUSSEINI: Thank you.

PATEL: Alex, please go ahead.

HUSSEINI: Thank you, I just haven’t gotten an answer.

PATEL: Please go ahead, Alex.

ALEX: Thanks, Vedant. I want to do one more push on the corridor issue.