This essay addresses the legal status of Palestinian political prisoners under international humanitarian and human rights law. At the heart of this issue lies the fundamental question of Israel's right to arrest hundreds of thousands of Palestinians, put them on trial before arbitrary military courts, and treat them as criminals in its capacity as the occupying power given the internationally-recognized right of Palestinians to resist occupation and pursue self-determination. This question takes on all the more urgency considering the illegal nature of the Israeli occupation1 and given that the laws and rules of war are applicable to Palestinian detainees as their status conforms to the definition of prisoners of war and civilians under occupation pursuant to the Geneva Conventions of 1949.
Two points of view on the legality of occupation under international law emerged in the wake of the U.S. occupation of Iraq. One view justified and legitimized the occupation on the grounds that it rescued the Iraqi population from an oppressive regime and therefore had humanitarian aims. Critics, including international law expert Richard Falk, disputed the view, claiming that regime change was a humanitarian aim was not equivalent to claims of humanitarian intervention under international law, they argued. International jurist and war crimes law expert Antonio Cassese has also asserted that while occupation is illegitimate in general, it might be considered legitimate if it was carried out in self-defense, restricted, and temporary. For more opinions see: Orna Ben-Naftali, Aeyal M. Gross, and Keren Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territory,” Berkeley Journal of International Law 23, no. 3 (2005), pp. 557–8, scholarship.law.berkely.edu.
Among the most notable instances of international refutation of Israel's argument against the application of international humanitarian law (IHL) and categorization of the West Bank and Gaza as occupied territory is the advisory opinion on the separation wall issued by the International Court of Justice (ICJ) in 2004. See ICJ, Advisory Opinion, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” 9 July 2004, www.icj-cij.org.
The Security Provisions Order (West Bank Region) 1967 was amended by Military Order No. 144, which was enacted on 22 October 1967 and abrogated the applicability of the Geneva Convention. For more details on the Israeli position and the narrow definition of occupation that allows states to refrain from providing minimum protection to the population under occupation, see Ben-Naftali, Gross, and Michaeli, “Illegal Occupation,” p. 551. See also: David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (SUNY Press: New York, 2002).
To review the ICJ advisory opinion regarding the Wall, see endnote 2 above. Also, see the report of the fact-finding committee on the 2009 Gaza conflict known as the Goldstone Report: Human Rights Council (HRC), “Report of the United Nations Fact Finding Mission on the Gaza Conflict,” A/HRC/12/48, 23 September 2009, unispal.un.org. In addition, see the report to the 25th session of the HRC in December 2013 by Richard Falk, the UN Special Rapporteur on human rights in the Palestinian territories occupied since 1967, in which Falk criticizes the failure of the UN to enforce the recommendations of investigative committees and other parties on the applicability of international law to the occupied territories. He argues that such failure endangers the principle of respect for international law, particularly in light of the recent UN General Assembly resolution granting Palestine the status of an observer non-member state (Richard Falk, HRC, “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk,” A/HRC/25/67, 13 January 2014, ohchr.org.
For more details, see the Falk report referenced above (endnote 4), as well as Richard Falk, HRC, “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories since 1967, Richard Falk,” A/HRC/16/72, paragraphs 8 and 32(b), 10 January 2011, www.un.org. See also HRC, John Dugard, “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard,” A/HRC/4/17, paragraph 3, 29 January 2007, unispal.un.org.
For more on defining occupation and the adoption of a broad definition of the term to guarantee its applicability to the largest number and possible forms of occupation, see Ben-Naftali, Gross, and Michaeli, “Illegal Occupation,” pp. 560–567. Also see: Orna Ben-Naftali, “Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism,” in Realizing Utopia edited by Antonio Cassese, (Oxford: Oxford University Press, 2012), p. 538.
See Ben-Naftali, Gross and Michaeli, “Illegal Occupation,” pp. 554–555.
Ben-Naftali, Gross and Michaeli, “Illegal Occupation,” p. 555.
See Human Sciences Research Council, Occupation, Colonialism, Apartheid? A Re-assessment of Israel's Practices in the Occupied Palestinian Territories under International Law (South Africa, Cape Town, May 2009), www.alhaq.org. Also see Falk, “Report of the Special Rapporteur,” 2011; and Falk, “Report of the Special Rapporteur,” 2014; and Ben-Naftali, Gross, and Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territory.”
For more, see General Assembly, 26th Session, Resolution 2787, “Importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights,” 6 December 1971, www.un.org. Other resolutions reiterating these principles include: Resolution 3070 (Session 28), Resolution 3236 (Session 29), and Resolution 2621 (Session 25) during the same General Assembly round; these are only examples of hundreds of other resolutions issued in this regard.
Article 4 of the Third Convention defines prisoners of war as follows:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions… .
For more on the Third Geneva Convention see: International Committee of the Red Cross (ICRC), “Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention),” 75 UNTS 135, 12 August 1949, www.refworld.org.
Article 4 of the Third Geneva Convention stipulates that to be recognized as such, organized resistance movements are required:
(a) To be under the command of a person responsible for his subordinates;
(b) To have a fixed distinctive sign recognizable at a distance;
(c) To carry arms openly;
(d) To conduct their operations in accordance with the laws and customs of war.
Currently, detained Palestinian prisoners can be considered either combatants in an organized resistance movement or civilians resisting the occupation, depending on whether they were members of armed groups when they were arrested or protesting civilians. Those arrested while belonging to an armed group fit the conditions enumerated by Article 4 and are thus considered POWs according to IHL, while all others fit the description of civilians resisting the occupation. Both categories of prisoners are protected under the Third and Fourth Geneva Conventions of 1949. For more details on this issue, see Edre U. Olalia, The Status in International Law of National Liberation Movements and Their Use of Armed Force (Utrecht, the Netherlands: International Association of People's Lawyers), www.iadllaw.org.
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (New York: ICRC and Cambridge University Press, 2005), p. 339–40.
Henckaerts and Doswald-Beck, Customary International Humanitarian Law, p. 339.
Much has been written on the issue of civilian trials before military courts, especially as regards children and with particular respect to Israeli military courts and the degree to which the requirements of fair trials are applied. There has been a chapter on the arrests and military trials of children in every report of the UN's Special Rapporteur. In addition, most international human rights bodies, such as the UN's Working Group on Arbitrary Detention, the Committee Against Torture, and the Committee on the Rights of the Child have repeatedly criticized the occupying regime for its policy of detention and military trials, specifically administrative detention. For more on the legal procedures in military courts and their inconsistency with the requirements of a fair trial, see Yesh Din, Backyard Proceedings: The Implementation of Due Process Rights in Military Courts in the Occupied Territories (Tel Aviv, 2007), www.yesh-din.org. For a comparison between Israeli military courts and procedures in the occupied territories with the apartheid regime in South Africa, see Addameer Prisoner Support and Human Rights Association, “Denial of the Right to Life and Liberty of Person as a Crime of Apartheid,” testimony delivered by Mahmoud Hassan, Russell Tribunal on Palestine, Cape Town, 5 November 2011, www.addameer.org.
Jean Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary, Volume IV (Geneva: ICRC, 1958), p. 335–337.
Ben-Naftali, Gross and Michaeli, “Illegal Occupation,” pp. 593–4.
For a list of parties and associations [in Hebrew] that have been declared illegal, see “Declarations of Terrorist Organizations, Unlawful Associations, and Confiscation Orders,” Israeli Ministry of Public Security, www.mod.gov.il. Note that the occupation authorities have also extended their characterization of illegality to scores of organizations in Europe and the U.S.
Second International Peace Conference, “Hague Convention (IV),” Article 42.
For more details on the occupation regime's territorial jurisdiction and violation of commitments, see Sharon Weill, “The Judicial Arm of the Occupation: the Israeli Military Courts in the Occupied Territories,” International Review of the Red Cross 89, no. 866 (June 2007), pp. 395–419.
Security Provisions Order (No. 378) of 1970 serves as the criminal code of the West Bank to this day. It has been amended over one hundred times since it went into force.
For more details on this issue, see Edre U. Olalia, The Status in International Law.
Ben-Naftali, Gross, and Michaeli, “Illegal Occupation,” p. 559.