International law is clear that prisoners should not be transferred outside of an occupied territory — both to allow their families access to them and to prevent forced population transfer. But that’s not all that’s at stake.
By Gerard Horton
Palestinian children detained in the Israeli military detention system should be held in facilities located in Palestine, as opposed to Israel, in accordance with international law, UNICEF recommended in its 2013 report, Children in Israeli Military Detention (2013).
The latest figures released by the Israeli Prison Service (IPS) indicate that since UNICEF made this recommendation the percentage of Palestinian children being transferred to prison facilities inside Israel has actually gone up. To make matters worse, the military authorities have informed the UN agency that they have no intention of changing the policy.
Does this matter?
To answer the question – does it matter? – it is worth briefly considering the legal provisions that prohibit transfer and understand why they were thought necessary in the first place. Article 76 of the Fourth Geneva Convention (the Convention) (see also Article 49) specifically prohibits the transfer of protected persons accused or convicted of offences from occupied territory.
It is unnecessary to consider whether or not the Convention applies to the Israeli/Palestinian conflict or the status of Palestine as occupied territory as both these issues have been authoritatively determined by the UN Security Council in legally binding resolutions putting the question beyond any reasonable dispute.
The articles of the Convention are accompanied by a commentary provided by the International Committee of the Red Cross (ICRC), whose role includes monitoring compliance of warring parties with the Convention. The commentary makes it clear that the prohibition against transferring protected persons from occupied territory, for whatever reason, stems from the experiences of the Second World War when mass transfers in Europe were commonplace.
Determined to avoid repeating these experiences, the authors of the Convention voted unanimously in favor of prohibiting unlawful deportation or transfer, including the transfer of detainees, and designated the practice as a “grave breach” of the Convention requiring severe penal sanctions as a deterrent.
In order to appreciate just how serious some signatories to the Convention view the practice of unlawfully deporting or transferring protected persons, legislators have passed laws which provide that any person who commits, or aids, abets or procures the commission by any other person of a “grave breach” is liable to imprisonment for a term not exceeding 30 years if convicted.
Similarly, the Rome Statute of the International Criminal Court, acceded to by Palestine earlier this year, lists the unlawful deportation or transfer or unlawful confinement of protected persons as a war crime requiring heavy sanction.
Anyone considering this issue with an open mind will be curious to know how the Israeli authorities justify a policy that commenced in 1967 and which currently affects between 7,000 to 8,000 detainees, including minors, each year.
The explanation can be found in two decisions of the Supreme Court handed down in 1988 (Sejadia case) and 2010 (Yesh Din case). In both cases the Court rejected the petitions filed on behalf of the detainees based on the primacy of Israeli domestic law (which authorises transfer) over provisions of international law (which prohibits transfer) where the two bodies of law directly contradict each other – as in this case. However, the position taken by the Court is unsustainable under international law by virtue of Article 27 of the Vienna Convention on the Law of Treaties which states that a party may not invoke the provisions of its internal law as justification for a failure to perform a treaty obligation.
But again, why does any of this matter?
Putting aside the question of whether the policy makes it more difficult for Palestinian families from the West Bank to visit loved ones held in detention facilities inside Israel, the issue matters because a violation of the Convention of this magnitude and duration undermines the credibility of the international legal order and its institutions with adverse implications for the rule of law in the region and beyond.
Alleged war crimes should either be investigated without fear or favor wherever they occur, or we must accept the risk that inaction will eventually destroy the legal order established at the end of the Second World War, and abandon whatever lessons we may have learned from that conflict.
A group of lawyers recently raised these concerns in a letter to various diplomatic missions. We believe the letter deserves an answer because unlike most issues related to the Israeli/Palestinian conflict, this one includes no dispute of fact. It is also apparent that if politics and the law continuously fail to deliver just solutions, societies will inevitably look elsewhere for answers.
Gerard Horton is a lawyer and co-founder of Military Court Watch.