By the end of September 2020, there were 4,184 Palestinians held in Israeli custody.Footnote 1 As of July 2021, this figure totaled 4,850, with 80 people serving more than 20 years and 544 undergoing life sentences.Footnote 2 These persons have been incarcerated based on the applicable pre-1967 penal and emergency regulations (chiefly British Mandate and Jordanian law) in addition to a series of military orders and other legislation applied by the Israeli military forces in the occupied State of Palestine.Footnote 3 Despite being a State Party to both the Geneva Convention III relative to the Treatment of Prisoners of WarFootnote 4 and Geneva Convention IV relative to the Protection of Civilian Persons in Time of War since 6 July 1951,Footnote 5 Israel has long denied the applicability of these conventions in the Palestinian territory. Further, Israel is not party to the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts of 8 June 1977,Footnote 6 which comprises provisions pertaining to the classification of prisoners during armed conflict or occupation. According to Convention III, persons classified as prisoners of war [POW or POWs] may not be subject to trial and should be released upon cessation of active hostilities.Footnote 7 Thus, the status of persons held in Israel's custody could be changed in accordance with the Convention's classification and rights thereof.
Although Palestine acceded to the Geneva Conventions III and IV as well as to Protocol I on 2 April 2014,Footnote 8 the Israeli treatment of Palestinians incarcerated at the military occupation facilities continues to remain unchanged. This paper argues that, since the accession of Palestine to the Geneva Conventions and Protocol I, the status of Palestine has been upgraded into a State Party and the classical debates relating to the applicability of Geneva Conventions to Palestinians,Footnote 9 particularly the Israeli contentions, have become redundant.
Part I of this paper explores the applicability of Geneva Convention III and Protocol I after Palestine's accession to these instruments. Part II examines, in detail, the typology of Palestinians confined by Israel and their status under the said Convention and Protocol.
I. Palestine's accession to the Geneva Conventions
Under international humanitarian law [IHL], three key treaties define the status of captured persons in times of war or belligerent occupation: Geneva Conventions III and IV as well as Protocol I. In the light of Palestine's accession to these instruments in 2014, we will compare the applicability of these instruments to Palestine before and after becoming a State Party.
Before the accession of Palestine to the Geneva Conventions and Protocol I, Israel claimed that the West Bank, including East Jerusalem, and the Gaza Strip did not constitute occupied lands. Instead, Israel referred to these regions as “contested territories”, arguing that its seizure of the territories resulted from the June 1967 war, whereby the West Bank was under Jordanian rule and Gaza under Egyptian administration. Israel contended that, as Jordanian and Egyptian control was illegitimate,Footnote 10 and as the sovereignty over the West Bank and Gaza Strip “remained in abeyance” due to the armistice agreements between Israel and its neighbours (namely Egypt and Jordan),Footnote 11 the status of the territories should be settled through negotiations.Footnote 12 This argument has already been refuted by the international community through overwhelming positions expressed by the United Nations Security Council [UNSC], General Assembly [UNGA], International Court of Justice [ICJ], Human Rights Council, International Criminal Court [ICC], and the unilateral positions of vast numbers of states,Footnote 13 well before Palestine's recent accession to the Geneva Conventions and Protocol I. Yet Israel maintains the same position to this day.Footnote 14
In the Wall Advisory Opinion, the ICJ declared:
The territories situated between the Green Line … and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories … have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.Footnote 15
This position was reaffirmed on 5 February 2021 through the ICC Pre-Trial Chamber I decision over the territorial jurisdiction in the Situation of Palestine which recognized Gaza, the West Bank, and East Jerusalem as “the occupied Palestinian territories” that compose together the State of Palestine as a Party to the Court.Footnote 16
Despite Israel's “Disengagement Plan” from the Gaza Strip in 2005, Israel has nonetheless continued to occupy it.Footnote 17 In the Israeli narrative, the occupation of Gaza ended with Israel's withdrawal in 2005.Footnote 18 In the Al-Bassiouni case, the Israeli Supreme Court confirmed this position by stating that Israel has no longer effective control over Gaza. It thus ruled that:
[T]he State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law. Neither does Israel have any effective capability, in its present position, of enforcing order and managing civilian life in the Gaza Strip.Footnote 19
However, the international community still considers Gaza as an occupied region.Footnote 20 Indeed, Israel retains military control over Gaza's territorial waters, airspace, entry of persons, supply of products and services such as electricity, fuel, telecommunication, population registry, and collection of export duties.Footnote 21 The Israeli army has also reinforced its grip through a terrestrial buffer zone over an area representing approximately seventeen percent within Gaza's imposed borders.Footnote 22 According to Article 42 of the customary law Hague Convention IV Respecting the Laws and Customs of War on Land of 18 October 1907 and its Annex (Regulations concerning the Laws and Customs of War on Land), a “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army”, and “[t]he occupation extends only to the territory where such authority has been established and can be exercised”.Footnote 23 The end of occupation occurs when the military forces of an occupier cease holding de facto control over the concerned region.Footnote 24 As Israel retains control over its sea, airspace, and border, Gaza remains therefore an occupied terra.Footnote 25
Prior to its upgrading to a non-member observer state by UN General Assembly Resolution in 67/19 of 29 November 2012, Palestine was viewed in the UN bodies as an “entity”, not a “State”.Footnote 26 This status barred it from accessing most international treaties, including the Geneva Conventions.Footnote 27 In 1989, Switzerland, acting as the depository of the said Conventions and their Protocols, did not accept the instrument consigned by the Palestine Liberation Organization [PLO] to join the Conventions.Footnote 28 The Swiss Federation argued that it was not in a position to decide whether the letter sent by the Permanent Observer of Palestine to the UN Office at Geneva amounted to an accession, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine”.Footnote 29 Nonetheless, Switzerland stressed that the PLO's unilateral declaration of the applicability of the four Geneva Conventions and the additional Protocol I remains valid.Footnote 30
At that time, the PLO was considered a national liberation movement under Article 1(4) of Protocol I that applies to armed conflicts in which people fight against “colonial domination and alien occupation … in the exercise of their right of self-determination”.Footnote 31 Although the right of the Palestinians to self-determination had been acknowledged, and even with a recognized body (the PLO) as its representative, the status achieved did not resemble that of states.Footnote 32 Since the door was not open to non-state actors to be parties to the Geneva Conventions or the Protocol, the PLO was unable to access them.Footnote 33 Further, as a non-member to Protocol I, Israel disputed the Protocol's extension to national liberation groups,Footnote 34 and the customary nature of the said Article 1(4).Footnote 35 Israeli assertions have affected the rights of captured Palestinian citizens.Footnote 36 By considering them individuals who do not belong to a State Party, nor to a liberation movement, this means that such persons cannot be considered as POWs.Footnote 37 Such a contention represents a wider policy toward the application of IHL for the Israeli-Palestinian conflict.Footnote 38 Indeed, as M. Cherif Bassiouni observed: “Israel always claims that all forms of violence by Palestinians, even when used in accordance with IHL, are terrorism, and that all of its retaliations, even when in violation of IHL, are justified.”Footnote 39 Hence, Israel has already been legally bound by the Geneva Conventions vis-à-vis the PLO despite Israel's argument to the contrary, based on the customary nature of the aforementioned Article 4 as well as the PLO's declaration to accept the application of the Conventions to the Israeli-Palestinian conflict. In this connection, Article 2(3), common to the four Conventions, provides the basis for the possibility of the Conventions’ application to a non-party “Power”, “if the latter accepts and applies the provisions thereof”. For many commentators, the term “Power” extends to “entities that are not States”.Footnote 40 We will not discuss this further as the situation shifted with Palestine's accession to the Conventions.
Palestine's status was refined once it was acknowledged as a non-member observer state by the United Nations in 2012.Footnote 41 At last, the state could accede to the Geneva Conventions and Protocol I, among dozens of other treaties,Footnote 42 pushing the debate on the applicability of Geneva Conventions that preceded that motion to the sidelines.Footnote 43 A new discussion may now point out the rights and duties of this newly recognized state. Michael Lynk, the current Special Rapporteur on the Situation of Human Rights in the Palestinian Territories, upon accession to a series of treaties on 2 April 2014, stated that the move “would enhance Palestine's acquisition of an international legal State personality”.Footnote 44 Consequently, Palestine's new status after its UN statehood recognition and accession to the Geneva Conventions has elevated its legal potential.Footnote 45
Notwithstanding that the relevance of Geneva Convention IV to Israeli-Palestinian conflict attracted substantial attention by international bodies and scholars,Footnote 46 Convention III has not been addressed to the same extent. However, it can be demonstrated that Convention III applies to the parties of the conflict just as Convention IV does. In 1969, Security Council Resolution 271 called upon Israel to “observe the provisions of the Geneva Conventions and international law governing military occupation”,Footnote 47 without excluding any of the four Conventions. In 2004, the ICJ relied on common Article 2 of the four Conventions when it concluded that Convention IV applies to Palestinian territories.Footnote 48 In 2009, a UN mission of inquiry posited the validity of Convention III as it found that Israeli soldier Gilad Shalit, who was then held captive by the Al-Qassam Brigades of Hamas in Gaza, “meets the requirements for prisoner-of-war status under the Third Geneva Convention”.Footnote 49 Logically, a convention cannot benefit one side of a given conflict while ignoring its opponent.
Most Geneva Convention III rules “constitute customary law”,Footnote 50 as well as Protocol I.Footnote 51 Former Special Rapporteur on the Situation of Human Rights in the Palestinian Territories John Dugard stated that “[i]t is at least a tenable argument that Article 1(4) [of Protocol I] reflects customary international law”.Footnote 52 State Parties to the Protocol reached 174 by July 2020.Footnote 53 The International Committee of the Red Cross [ICRC] and Amnesty International confirm this position,Footnote 54 and even the Israeli Supreme Court has accepted that certain Protocol I provisions echo customary law.Footnote 55
Israel refuses to extend Convention III to incarcerated Palestinians, contending that they do not belong to a party of the conflict.Footnote 56 Captives, in Israeli eyes, represent “criminals for all purposes”.Footnote 57 They are held pursuant to a body of law that Israel chooses.Footnote 58 In the Kassem case, an Israeli court inferred that the lack of recognition of an armed group by the state precludes the application of Convention III.Footnote 59 Yet, on 11 April 2014, the Swiss Federation declared that Palestine had become a High Contracting Party to the Geneva Conventions and Protocol I.Footnote 60 This step compels Israel to adjust its treatment of Palestinians.Footnote 61 Further, ahead of Palestine's accession to Convention III, Pulido concluded that “the characterization of certain groups as ‘terrorists’ and ‘unlawful combatants’ is a tool expressly designed to exclude groups from the scope of international law”.Footnote 62 Hence, the application of Convention III to individuals locked in Israeli jails can no longer be ignored under IHL.
The binding effect of the Geneva Conventions and Protocol I is no different from the other hundred or so treaties that Palestine has acceded to over the past decade. Treaty law affirms the de jure existence of Palestine as a state vis-à-vis other states, at least when it comes to the purpose of each given instrument. UNESCO Conventions, such as the Convention Concerning the Protection of World Cultural and Natural Heritage,Footnote 63 to which Palestine became party on 8 December 2011,Footnote 64 establish rights and duties for states.Footnote 65 Pursuant to its 2015 accession to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,Footnote 66 Palestine communicates with the Convention's Secretariat.Footnote 67 Member States to the Vienna Convention on Diplomatic RelationsFootnote 68 and the Vienna Convention on Consular RelationsFootnote 69 have established diplomatic and consular missions in Palestine after it became a party to these two conventions; and the ICJ perceives Palestine as a state in the case relating to US Embassy relocation by receiving its application.Footnote 70 The ICC General Assembly of States Parties, as well as the Court itself, deal with Palestine as “a State Party to the [Rome] Statute”.Footnote 71 Palestine has been particularly accepted as a state in the recent practice of UN human rights bodies after accession to core conventions.Footnote 72 Treaty bodies have requested Palestine to undertake actions arising from its obligations, and state reports were received by at least four UN committees: the Committee on the Elimination of All Forms of Discrimination against Women [CEDAW],Footnote 73 the Committee on the Elimination of All Forms of Racial Discrimination [CERD],Footnote 74 the Committee on the Rights of the Child,Footnote 75 and the Committee on the Rights of Persons with Disabilities.Footnote 76 Two committees have discussed Palestine's reports and issued concluding observations, demanding adherence to certain stipulations:Footnote 77 CEDAW in 2018,Footnote 78 and CERD in 2019.Footnote 79
Palestine was admitted as a party on 10 April 2019 to the individual complaints mechanisms after acceding to the Optional Protocol to the Convention on the Rights of the Child,Footnote 80 the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women,Footnote 81 and the Optional Protocol to the Convention of Persons with Disabilities.Footnote 82 Accordingly, individuals who claim rights infringements under the relevant conventions may complain against the offending state.Footnote 83 As it bears duties arising from these treaties, Palestine may also benefit from the rights regulated thereunder; including the rights set forth in Convention III with regard to persons held by Israeli captors. In sum, Convention III, as well as Convention IV and Protocol I, applies in the context of Palestinian-Israeli conflict, like other treaties.
Incarcerated persons holding Palestinian citizenship should be treated as individuals belonging to a State Party to the conflict under Geneva Conventions III and IV, as well as Protocol I.Footnote 84 States view permanent inhabitants of the West Bank and Gaza as Palestinian citizens;Footnote 85 diplomatic missions issue entry visas on Palestinian passports; citizens’ rights are legally upheld within Palestine's sphere; citizens vote in legislative elections and municipal councils,Footnote 86 hold public office,Footnote 87 become ministers or judges,Footnote 88 own real estate,Footnote 89 join professional unions,Footnote 90 have unrestricted right to work,Footnote 91 and form political parties and establish professional associations,Footnote 92 and Palestine exercises diplomatic protection for its citizens abroad.Footnote 93 Palestinians may be considered by states and international organizations as citizens for diverse purposes, for instance in cases involving private international law disputes,Footnote 94 refugee status determination,Footnote 95 and appointment in global institutions.Footnote 96 Thus, the status of some five million residents of the West Bank and the Gaza Strip is akin to the citizens of sovereign states.Footnote 97 Palestinian citizens who are confined by Israeli forces, who fall within the classification determined in Convention III, should be treated as POWs on the same footing as citizens of State Parties to the Geneva Conventions and Protocol I.Footnote 98
Besides the application of Geneva Convention IV that has been repeatedly reaffirmed, as shown above, the applicability of Convention III is manifested in the words of Article 2, common to the four Conventions. The relevant part of this Article provides that “[t]he Convention shall … apply to all cases of partial or total occupation of the territory of a High Contracting Party”. As the State of Palestine is a High Contracting Party, and as its spatial landscape remains under occupation, there is no question regarding the applicability of Convention III to Palestinian POWs of various categories. The question should be rather diverted toward how Convention III applies, as the next typology illustrates.
II. Typology of incarcerated Palestinians
Geneva Conventions III and IV, as well as Protocol I, set out the conditions for people who fall into the hands of an adversary in an armed conflict.Footnote 99 Such people are classified as either combatants, i.e. “prisoners of war”, or non-combatants and therefore incarcerated as civilians or “internees”. Specific rights and privileges are assigned to each category. Through its 2002 Incarceration of Unlawful Combatants Law,Footnote 100 Israel has created a third type that it has named “unlawful combatants” with a view to exclude captured Palestinians from the scope of POW and permit prolonged incarceration with reduced guarantees.Footnote 101 In the 2006 Targeted Killings case, a court summarized the official position of the Israeli government as follows:
The terrorists and their organizations, against which the State of Israel is conducting an armed conflict of an international character, are not included in the category of combatants. They do not belong to the armed forces nor are they included among the units that are given a status similar to that of combatants by customary international law. Indeed, the terrorists and the organizations that send them are unlawful combatants. They do not enjoy the status of prisoners of war. It is permitted to bring them to trial for their participation in the hostilities, to try them and sentence them.Footnote 102
During the 2014 war on Gaza, for example, Israeli forces captured thirteen persons who were held “under temporary detention instructions issued pursuant to the Incarceration of Unlawful Combatants Law”.Footnote 103 This typical Israeli standing runs counter to established foundations of international legal rules. IHL does not recognize the categories of “terrorist” or “unlawful combatant”. Such a classification has been described as a tool expressly designed to exclude groups from the scope of international law, tailoring it to meet political interest for one side of a conflict.Footnote 104
With the view that the State of Palestine has become a party to Conventions III and IV, besides Protocol I, this section will explore the changes in status of the four categories of Palestinians held by Israel in accordance with IHL in the light of Palestine's accession to said Convention. The four categories of confined Palestinians are: (A) members of security forces, (B) affiliates of organized resistance movements, (C) levée en masse, and (D) civilians who politically oppose occupation without taking part in hostilities.
A. Security officers
Israeli authorities frequently arrest individuals affiliated with Palestinian security forces under various pretexts, such as possessing “illegal” weapons or carrying out acts of resistance. Currently, there are reportedly about 450 affiliates of Palestinian security agencies held behind Israeli bars.Footnote 105 Article 4(A)(1) of Geneva Convention III considers POWs “[m]embers of the armed forces of a Party to the conflict”. Israel did not treat such persons as POWs before Palestine's accession to Convention III as they, in Israel's eyes, did not belong to “a Party to the conflict”. However, two months after the Convention entered into force for Palestine,Footnote 106 former Legal Adviser of Israeli Ministry of Foreign Affairs Robbie Sabel stated that Palestine's accession could support a claim, against Israel's desire, that any Palestinian officer captured by the Israeli army would be entitled to POW status.Footnote 107 Hence, a new status of incarcerated security personnel can be legally reaffirmed.
Under IHL, members of regular armed forces possess POW status upon capture. This status continues regardless of whether the occupier recognizes the government to which the officers are affiliated. Article 4(A)(3) of Convention III prescribes that captives benefit from POW status if they are “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power”. More explicitly, Article 43(1) of Protocol I acknowledges as POWs:
[A]rmed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
Thus, Convention III does not embrace precise requirements on members of a state's armed forces to be considered as POWs. According to the ICRC Commentary on Geneva Convention III, the drafters of the Convention contemplated that each state should take steps “so that members of its armed forces can be immediately recognized”.Footnote 108 The captured members of a state's armed forces can prove their status just by presenting the military identification provided to them by their state.Footnote 109
To give clarity to Convention III requirements, as protocols of international treaties are meant to do, Article 43 of Protocol I provides that armed forces must be subjected to an internal system that ensures commitment to international law during armed conflicts. Article 44(3) of the Protocol adds that “combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack”. To benefit from POW treatment, therefore, captured security officers should meet four conditions: be part of regular forces, be under a responsible command, be subject to an internal disciplinary system, and be distinguished from the civilian population. Such stipulations are normally found in the domestic laws of various states. Hence, it is imperative to look at the applicable law in Palestine pertaining to security agencies to assess the existence of the aforesaid terms for officers captured by Israeli military.Footnote 110
The current formation of security agencies in Palestine (the West Bank and the Gaza Strip) commenced with the emergence of the Palestinian Authority [PA] in 1994–95 as part of the PLO-Israel interim self-rule peace agreement, commonly known as the “Oslo Accords”.Footnote 111 Annex 1 of the Oslo Accords provided the basis for the police forces to act towards maintenance of law and order in the PA areas. Article II(1.a) states that “[t]he Palestinian Police is the only Palestinian security authority”.
The PA incorporated in the scope of “police” enshrined in the Oslo Accords various security agencies as the PA inherited the PLO security legacy. After Oslo, thousands of former PLO fighters returned home.Footnote 112 They belonged to diverse factions, with different banners and command chains, such as “Palestinian Liberation Army”, “Special Forces”, “Intelligence”, and “Presidential Guards”. Facing the reality of running the daily lives of Palestinians under its self-rule, the PA at the same time started building state institutions: administrating courts, ministries, prisons, and confronting crimes, while simultaneously absorbing the civilians who were part of resistance movements. That led to the creation of fresh security structures, including “Civil Defence”, “Prison Police”, and “Preventive Security”. Those who were operating from Arab states as part of the Palestinian Liberation Army were reorganized under the agency of “National Security”, which was envisaged to function as the state's army. In reality, multiple security agencies were founded.Footnote 113
With the outbreak of the second Palestinian uprising (Intifada) that led to lawlessness and chaos, a reformation process had begun afresh to rebuild state security institutions.Footnote 114 The PA adopted a Basic Law in 2002, which was modified in the Amended Basic Law of 18 March 2003.Footnote 115 This law functioned as the constitution of Palestine in the transitional period. With regard to the security establishment, Article 84 of the 2003 Basic Law stipulates:
1. The Security Forces and the Police are regular forces. They are the armed forces in the country. Their functions are confined to defending the country, serving the people, protecting society and maintaining public order, security and public morals. They shall perform their duties within the limits prescribed by law, with complete respect for rights and freedoms.
2. The law shall regulate the status of Security Forces and the Police.
The PA then enacted a series of legislative acts pertinent to the security forces. Examples of such pieces of legislation include: the Law of Insurance and Pensions of the Palestinian Security Forces No. 16 of 28 December 2004,Footnote 116 the Law of Service in the Palestinian Security Forces No. 8 of 4 June 2005,Footnote 117 the General Intelligence Law No. 17 of 26 October 2005,Footnote 118 and the Decree-Law Concerning the Preventive Security of 20 November 2007.Footnote 119 A number of executive orders were simultaneously endorsed to further regulate and strengthen the system, such as the Decision of the Council of Ministers No. 100 of 3 August 2004 Concerning the Formation of Permanent Ministerial Committee on Security Affairs,Footnote 120 and the Presidential Decree No. 26 of 28 October 2005 Concerning the Re-Formation of the National Security Council.Footnote 121
These enactments, particularly the aforementioned 2005 Law of Service in Security Forces, unified security agencies under three major bodies: “Internal Security”, “General Intelligence”, and “National Security”. Other agencies had to be placed, legally or administratively, under one of these three agencies. The “Internal Security” agency, for instance, incorporated three bodies: “the Police”, “Preventive Security”, and “Civil Defence”. “Presidential Guards” and “Customs Police” became part of “National Security”. The “Naval Force” was annexed to “General Intelligence”. The Minister of Interior was designated to command all agencies. In effect, however, separate ministerial portfolios were created for each of the three major agencies. A number of sub-agencies maintained reporting ties with President Abbas, particularly the Police Commander and the Head of Preventive Security.Footnote 122 It appears that this direct reporting line derived its basis from Article 39 of the Amended Basic Law: “The President of the National Authority is the Commander-in-Chief of the Palestinian Forces.”
In the Gaza Strip, months after the political wing of Hamas won the legislative elections in January 2006, the then Palestinian Minister of Interior, affiliated with Hamas, announced the formation of an “Executive Force” as a new security agency composed of 3,000 recruits from various armed groups,Footnote 123 invoking a constitutional power to do so.Footnote 124 In June 2007, Hamas took over control of Gaza and set up its own de facto government.Footnote 125 Over 30,000 PA security officers were instructed by the Fatah-led PA in Ramallah not to co-operate with Gaza's authorities and to stay home. In October 2007, the Executive Force was merged with the previous PA's police.Footnote 126 Hamas maintained the same structure of security forces as functioned before 2007, while renaming “Preventive Security” as “Internal Security”. Hamas ceased to apply post-takeover law promulgated by the PA. Rather, it crafted its own legislation by its leaders or through the Gaza branch of parliament.Footnote 127 In the reconciliation agreements that took place in subsequent years between Fatah and Hamas, it was in principle agreed to reunify the security services in both the West Bank and Gaza.Footnote 128 In its final report in 2019, the UN Commission of inquiry on the protests in the Occupied Palestinian Territory considered Hamas “to be obliged to respect, protect and fulfill human rights in light of its government-like functions in Gaza”.Footnote 129
Under IHL, for regular armed forces, “membership is generally regulated by domestic law and expressed through formal integration into permanent units distinguishable by uniforms, insignia, and equipment”.Footnote 130 According to an ICRC commentary: “[t]he requirements for membership in the armed forces are not prescribed in international law. Rather, it is a matter of domestic regulation.”Footnote 131 This examination reveals that the term “members of the security forces” comprises security personnel in the West Bank and Gaza, as long as officers are recruited according to the local law. If any de jure or de facto authority forms a governmental apparatus, then officers of its forces should be treated as POWs in the event of arrest. It is not for the detaining power to determine who belongs to Palestinian security forces, but it is for domestic law to provide such determination, regardless of Israel's position.
Palestinian security forces have developed a hierarchy, chain of command, and internal disciplinary system. Palestine repeatedly reaffirmed its respect for IHL as reflected in the 2003 Amended Basic Law,Footnote 132 formal instructions to security forces,Footnote 133 and its recent accession to the 1907 Hague Regulations,Footnote 134 the Geneva Conventions, and Protocol I. Members of Palestinian security agencies wear uniforms.Footnote 135 Judicial and administrative accountability mechanisms to ensure respect for human rights law and humanitarian law have been set up.Footnote 136 Even so, strict adherence to such rules is not required for confined persons to qualify as POWs. Article 44(2) of Protocol I indicates that, even if combatants do not follow the rules of international law applicable in armed conflict, “violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war”. This provision is meant to prevent “any attempt to deny prisoner of war status to members of independent or regular armed forces on the allegation that their force does not enforce some provision of customary or conventional law of armed conflict”.Footnote 137
According to Article 4(4) of the Protocol, a combatant who fails to meet the requirement of distinction “shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war”. Israeli non-recognition of certain individuals’ affiliation with security forces and the method of their operations should not deny such individuals POW status,Footnote 138 or, at the very least, such individuals should be given protection equivalent to POWs, as the case may be. In State of Israel v. Marwan Barghouti (2002), the District Court of Tel Aviv and Jaffa decided that:
[T]he Defendant's method of combat is, in the clearest possible manner, contrary to the most basic rules of law, and accordingly he is not entitled to enjoy the protections afforded under international law to combatants who act in accordance with the rules of war.Footnote 139
Such Israeli determination manifestly contradicts established rules of IHL.Footnote 140
Thus, Palestinian officers confined by the Israeli army meet POW status under IHL and the detaining power is bound to treat them as such.
B. Resistance organizations
Four decades prior to the Geneva Conventions, Article 1 of the 1907 Hague Regulations recognized that the “laws, rights, and duties of war apply … to militia and volunteer corps”. Affiliates of such units may legitimately resist the occupant as combatants.Footnote 141 Thus, when captured, members of such groups are considered as POWs whose rights are regulated in Articles 4–20 of the Regulations. Geneva Convention III embraced a similar provision in Article 4(A)(2), where it confers POW status on “[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict” who have fallen into the hands of an adverse party. Similar to the Hague Regulations, this provision sets out four conditions for such corps to acquire a belligerent status and, therefore, be treated as POWs: having a leadership commanded by a person responsible for his subordinate; having a fixed distinctive sign recognizable at a distance; carrying arms openly; and conducting operations in accordance with the laws and customs of war. We will first review the definition of “organized resistance movements, belonging to a party to the conflict”. Then we will analyze the conditions under which a member of resistance corps may qualify as POWs in accordance with Convention III and Protocol I.Footnote 142 Against this backdrop, we will assess whether these conditions apply to Palestinian fighters.
The word “other” in Article 4(A)(2) of Convention III distinguishes resistance movements from corps affiliated with armed forces. Such groups operate independently and are said to:
[R]ecruit their members primarily from the civilian population but develop a sufficient degree of military organization to conduct hostilities on behalf of a party to the conflict, albeit not always with the same means, intensity and level of sophistication as State armed forces.Footnote 143
For its members to be considered POWs, a liberation movement must belong to a party of the conflict. According to an ICRC interpretation:
[I]n order for an organized armed group to belong to a party to the conflict, it appears essential that it conduct[s] hostilities on behalf and with the agreement of that party. Groups engaging in organized armed violence against a party to an international armed conflict without belonging to another party to the same conflict cannot be regarded as members of the armed forces of a party to that conflict.Footnote 144
This de facto relationship can be visualized by tacit agreement, “if the operations are such as to indicate clearly for which side the resistance organization is fighting”.Footnote 145
It is possible to deduce from the foregoing that the vast majority of affiliates of Palestinian resistance organizations, while formally separate from security forces, fight on behalf of a party to the conflict against the occupation. This includes the Al-Aqsa Martyrs Brigades, which is a military offshoot of Fatah, and the Al-Qassam Martyr Brigades, the military wing of Hamas, along with other factions. Fatah and Hamas constitute the main parties of the PA branches operating in Ramallah and Gaza, respectively, as elaborated above. It is believed that most Palestinian prisoners in Israeli jails belong to resistance groups.Footnote 146
Resistance movements form part of the State of Palestine, or a party to the conflict under Convention III, for the purpose of POW status determination. Articles 10 and 11 of the rules of attribution to a new state developed by the International Law Commission establish the norm whereby insurgents’ conduct is attributable to a state, in accordance with the principle of continuity between the national liberation movement and the new state, and acknowledgment of the movement by the state.Footnote 147 Thus, “it may become difficult to continue to deny combatant status to such forces, or to refuse to treat captured members thereof as prisoners of war”.Footnote 148 Particularly after the 2012 recognition of Palestine as a state by the United Nations and Palestine's accession to the Geneva Conventions in 2014, as Dugard aptly put it: “the situation [of those incarcerated by Israel will] change, and Palestinian resistance fighters [will] be entitled to POW status under the 1949 Convention [III].”Footnote 149
However, in 2006 the Israeli High Court of Justice ruled that
[A] civilian who joins a terrorist organization … and within the framework of his position in that organization he carries out a series of hostilities, with short interruptions between them for resting, loses his immunity against being attacked.Footnote 150
The Court did not consider the civilian “who joins a terrorist organization” as a combatant, which means he will not be granted POW status in the case where he falls into enemy hands. This position runs counter to the IHL rules. According to the ICRC, members of an organized armed groups are civilians who are involved with the organization and assume a “continuous combat function”.Footnote 151 This concept of a “continuous combat function” has been confirmed in the discussions of expert groups.Footnote 152 In any case, the above Israeli court decision, which represents the official position of Israel, was expressed before the accession of Palestine to Convention III, and should be altered thereafter.
Let us turn to the Convention's four requirements for members of organized movements to gain POW status and assess who these requirements apply to Palestinians.
1. Possessing leadership
The condition for a resistance movement “being commanded by a person responsible for his subordinates” presupposes the existence of structured leadership for such a group. Indeed:
Only when such a structure exists can the leaders train the members of the group, give clear orders and instructions, be informed of the actions of subordinates and react promptly to them. A chain of command and a reporting system are thus necessary if the leadership is to be informed about violations, trace the role played by individuals in committing a crime and take appropriate measures.Footnote 153
In the context of Palestine, armed resistance factions have their own known leadership. Group commanders discipline subordinate individuals. As indicated by the former UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territory: “many combatants meet the requirements … that they be members of an organized force, under a responsible command structure.”Footnote 154 In particular, leaders of the largest factions, Fatah and Hamas, function publicly. Fatah forms an essential part of the PLO and has a hierarchy system, so it is subject to a person responsible for his members.Footnote 155 Hamas, on the other hand, possesses a political bureau and an announced commander of its military wing.Footnote 156
Since at least 11 July 1979, various PLO factions have been subjected to a set of laws developed in the diaspora which has been brought to Palestine after the formation of the PA in 1994 and is still enforced.Footnote 157 These laws, often called “military law” or “revolutionary legislation”, consist of: (1) Penal Law, (2) Penal Procedures Law, (3) Formation of Military Courts Law, and (4) Correction Centers (Prisons) Law.Footnote 158 The laws sanction any operative who commits a range of crimes that might occur during armed resistance. These laws have become part of the law of the West Bank and Gaza legal system that applies to groups who take part in acts of resistance, along with members of security agencies.Footnote 159 Similarly, Hamas and its military wing pursue their leaders’ orders.Footnote 160 As Horovitz indicated, Hamas has reached a “high level of organization, with a structured military force, political and social components”.Footnote 161
Thus, the possession of known leadership, as a requirement for captured operatives of armed resistance groups to qualify as POWs under IHL, is adhered to by Palestinian factions.
2. Possessing fixed distinctive sign
The requirement of the adoption of “a fixed distinctive sign recognizable at a distance” by resistance militia aims to distinguish a group's members from civilians and from other militants. As the ICRC interpretation of Article 4(2) of Convention III illustrates, a distinct emblem “must be the same for all the members of any one resistance organization, and must be used only by that organization”.Footnote 162 Article 44(3) of Protocol I adds that “combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack”. The latter proviso, according to the authoritative work of Henckaerts and Doswald-Beck, amounts to a customary rule.Footnote 163
Although there is no agreed-upon form of a “fixed distinctive sign”, the ICRC has suggested that “[s]uch a sign need not necessarily be an arm-band. It may be a cap … a coat, a shirt, an emblem or a coloured sign worn on the chest”.Footnote 164 The booklet of the US Air Force provides that a part of military uniform suffices if it clearly distinguishes combatants from civilians.Footnote 165 Protocol I was explicit in this regard by acknowledging that “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant provided that, in such situations, he carries his arms openly” (Article 44(3)). Likewise, “the term ‘recognizable at a distance’ is open to interpretation”.Footnote 166 It is “widely agreed that the requirement is met by an armband, an insignia, or, for example, a distinctive headgear or coat”.Footnote 167
Palestinian resistance groups do distinguish themselves from civilians and from each other by coloured signs, including flags and emblems. Each flies a different flag colour: yellow for Fatah, green for Hamas, black for Islamic Jihad, and Red for the Popular Front for the Liberation of Palestine [PFLP]. Various organizations have embraced a separate emblem with symbols and statements, worn by individuals, carried in marches and other gatherings, and used to mark a group's premises. In the Kassem case, an Israeli military tribunal found out that the defendants had already fulfilled the need to distinguish themselves from the civilians adequately by wearing camouflage hats and green clothes, as such clothes were not regularly worn by the population.Footnote 168 As a United Nations probe discovered, there is “no evidence that members of Palestinian armed groups engaged in combat in civilian dress”.Footnote 169
In short, as far as the requirement of a fixed distinctive sign is concerned, captured operatives of Palestinian armed factions would be considered, and should be legally treated, as POWs.
3. Carrying arms openly
According to Article 43(4) of Protocol I, a combatant who cannot distinguish himself shall carry his arms openly: “(a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate”. The forms of “carrying arms openly” have been for long debated by states as a means to distinguish militants from civilians. Most states require a minimum distinction without a clear-cut formality.Footnote 170 The booklet of the US Air Force indicates that “this requirement is not satisfied if the armed group makes a practice of carrying only concealed weapons or of hiding weapons on the approach of enemy forces to avoid identification as fighters”.Footnote 171 In the Kassem case, an Israeli military tribunal ruled that the requirement of carrying arms openly is not complied with where weapons cannot be seen, nor in the case of carrying weapons during a hostile clash.Footnote 172 However, the British military manual hinted that the government statement with other states on the ratification of Protocol I indicates that the exception mentioned in Article 44(3) of Protocol I regarding “carrying arms openly” is applicable only in the case of the occupied territories.Footnote 173
In practice, there are events in which fighters cannot strictly fulfil the rule of being distinguished and, at the same time, not lose the status of being POWs.Footnote 174 Article 44(4) of Protocol I states in this connection that:
[A] combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 [on carrying arms openly] shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third [Geneva] Convention and by this Protocol.
Hence, “[e]ven in this situation he shall ‘be given protections equivalent in all respects to those accorded to prisoners of war’”.Footnote 175
Most Palestinian factions carry weapons openly. They do so, in particular, during military parades. Marching with machine guns and missile mortars have become the norm after the 2005 Israeli withdrawal from Gaza. Al-Qassam Brigades do so frequently. Even in the West Bank, resistance fighters often bear weapons publicly in refugee camps and sometimes in villages and towns. Affiliates of Fatah, whose operations are tolerated by the PA, walk with arms on a daily basis. Appearing with guns in the West Bank has frequently triggered attacks by Israeli troops. On 12 March 2008, for instance, an Israeli undercover force killed four armed men in a raid in Bethlehem.Footnote 176 In Gaza, likewise, the Israeli army often targets operatives while carrying guns openly.Footnote 177 According to an Israeli NGO, fifty-five militants were killed while carrying arms openly by the Israeli military from 2009 to 2019 in Gaza.Footnote 178 As noted above, Fatah in the West Bank and Hamas in Gaza run premises in which activists enter with weapons.Footnote 179 Faction commanders stationed in certain locations sometimes intercept Israeli forces operating in Palestinian territory. On 11 November 2018, eight Israeli agents disguised as local civilians were stopped and questioned by a Hamas patrol in Khan Yunis city in the southern Gaza Strip. The firefight that erupted as a result of uncovering the Israeli infiltration resulted in casualties on both sides and control over the Israeli soldiers’ equipment.Footnote 180 From such instances one may conclude that the condition of carrying weapons openly is largely observed by Palestinian resistance fighters, albeit in diverse fashions.
In sum, where Palestinian resistance fighters meet the condition of “carrying arms openly”, they, as such, should be treated as POWs in the case of capture.
4. Respecting laws and customs of war
The PLO, in which the Fatah movement forms the leading faction along with the PFLP, announced its commitment to respect and implement IHL in its actions to liberate Palestine. As indicated in Part I above, on 21 June 1989 the Permanent Observer of Palestine to the United Nations Office at Geneva informed the Swiss Federal Council that the PLO had decided to accede to Geneva Conventions of 1949 and their two 1977 Protocols.Footnote 181 As the Swiss government then refused to take a decision on the matter, the State of Palestine acceded to these instruments on 2 April 2014. Such accession implies that all factions that take part in the Palestinian authorities, including the Fatah-led internationally recognized government in Ramallah and the Hamas-run de facto government of Gaza, are bound by Geneva Conventions III and IV as well as Protocol I.Footnote 182 For its part, the Hamas authorities “made a series of unilateral declarations of respect for human rights”,Footnote 183 and it seems that the commitment to “human rights” is used here broadly, and may encompass IHL.Footnote 184
As in any armed conflict, violating part of IHL norms by Palestinian resistance groups might well occur.Footnote 185 However, breaches by certain individuals of an armed group do not deprive all armed organizations or each member of a given group of their eligibility for POW status. An Israeli judge stated that Palestinian factions “include groups that are not necessarily identical to one another from the viewpoint of their willingness to accept the basic legal and humanitarian norms”.Footnote 186 Although the Israeli Supreme Court acknowledged “the existence of groups who ‘fight the army’ as opposed to those who act against civilians … it fails in practice to allow benefits to those fighting solely against the army”.Footnote 187 It was correctly observed in this respect that “violations of IHL have not been treated as a key ground for refusing POW status”.Footnote 188 At any rate, a violation committed by a member of an armed group in the context of overall compliance by the group does not mean that all its members should lose their qualification as POWs, and that implication should only affect the member who commits the violation.Footnote 189 This means that every individual who falls into enemy hands should be subject to a separate investigation regarding his status on case-by-case basis.Footnote 190 In the Goldstone Report, the detained Israeli soldier Gilad Shalit was considered by the UN Fact Finding Mission as a POW in spite of the Mission's position that the Israeli army had breached a set of IHL rules.Footnote 191 Likewise, the European Parliament, while denouncing Israeli IHL abuses, called upon those holding Shalit to treat him as POW.Footnote 192
This discussion shows that members of Palestinian resistance movements are largely affiliated with organized forces that comply with the laws and customs of war and, in the event of capture, should be treated as POWs by the Israeli authorities.Footnote 193
5. Final remarks
The foregoing demonstrates that the four conditions enumerated in Article 4 of Geneva Convention III for captives of resistance movements apply to militants who fight occupying forces in the territory of Palestine. Therefore, in the case of arrest, such individuals should be treated as POWs, particularly after Palestine's accession to Convention III in 2014. But “[s]hould any doubt arise as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in Article 4”, by virtue of Article 5 of Convention III, “such persons shall enjoy the protection of [Convention III] until such time as their status has been determined by a competent tribunal”. Neither Israel, nor any occupying power, should “be able to unilaterally decide that no doubt has arisen for an entire group of captured persons who have taken part in hostilities”.Footnote 194 In this regard, the competent tribunal “should be ‘impartial and effective’”,Footnote 195 while Israeli courts are widely viewed as partial and acting as “the judicial arm of the occupation”.Footnote 196 Such courts, which tailor the interpretation of international law “exclusively to meet the needs of the State”,Footnote 197 cannot determine the fate of captive Palestinian citizens under international law.Footnote 198
Even if Israeli military tribunals, assuming arguendo, are entitled to adjudicate on incarcerated Palestinians, “the procedure followed … in the first instance should, as a minimum, be in accordance with the corresponding rules of the Fourth [Geneva] Convention”.Footnote 199 In any event, the protections in Article 75 of Protocol I apply as a minimum. Indeed, “[t]hese protections are today considered part of customary international law”.Footnote 200
Against this background, POW status determination may be referred to an impartial body, for example, the ICRC,Footnote 201 a court established by a neutral state, or to an international tribunal, such as the ICC.Footnote 202 The latter option has become plausible after Palestine's accession to the Rome Statute in 2015.Footnote 203 Indeed, Palestinians may not remain under their captor's mercy, and “where doubts exist, international protection, i.e. POW status, should prevail over domestic punishment … and this is a clear example of a case in which pressure should be applied by third States to secure compliance”.Footnote 204
C. Mass rising
Geneva Convention III considers as a POW, in the event of capture:
[I]habitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect laws and customs of war.Footnote 205
This provision pertains to civilians who fight invading troops before the control of a given land.Footnote 206 As the ICRC commented: “This refers to a mass rising. The enemy is obliged to recognize the belligerent status … even though they may not have had time to form themselves into regular armed units.”Footnote 207 Acknowledged as customary law, the rule was codified in Article 2 of the 1907 Hague Regulations: “Inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops … shall be regarded as belligerents”. Although such a category of persons (named levée en masse) forms part of the civilian population, they must be treated as POWs in the event of an arrest by the invading enemy troops.
Emily Crawford's paper “Tracing the Historical and Legal Development of the Levée En Masse in the Law of Armed Conflict” is probably the most comprehensive work on levée en masse.Footnote 208 Denying the contemporary status of mass risers as POWs, Crawford has traced the topic from post French Revolution conflicts as early as 1793, through the concept's codification in the Lieber Code of 1863, Brussels Declaration of 1874, Oxford Manual on the Laws of War on Land of 1888, Hague Regulations of 1899 and 1907, and Geneva Conventions of 1929 and 1949, until recently. However, the paper includes multiple contradictions and its findings are rather misleading.
While Crawford concludes that the notion of levée en masse no longer applies, she cites ample sources that affirm the very notion: domestic military manuals of twenty-nine states, ICRC commentary, travaux préparatoires of diverse humanitarian law texts, and court cases and literature (Greenspan, Rebus, and Solis). Crawford asserts her argument against the overwhelming counter-evidence, and virtually calls upon occupied people to capitulate to their occupier, owing to, as she claims, the massive power of the adversary. Yet the evidence proves the ongoing relevance of levée en masse.
Having said that, what could be a point of interpretation is the exact meaning of the terms encompassing the definition of levée en masse, viz: “non-occupied”, “territory”, “spontaneously”, “arms”, “invading forces”, “time”, “carry arms”, “openly”, “respect the laws and customs of war”, “rise”, “levée”, and “en masse”. Every word underlying the concept as defined in Article 4(a)(6) of Convention III requires further research. The notion and its corresponding legal implications are far from being settled. The levée en masse needs to be analyzed in the light of the wider principles of public international law rules, not least the right to self-defence (individually and collectively),Footnote 209 the right to self-determination, the right of resistance against colonial domination and alien occupation, guerrilla fighting, legitimacy, or illegality of occupation (e.g. whether an occupation is permitted under the United Nations Charter, particularly based on the Security Council's authorization), human rights standards, relevant state practice, and subsequent jurisprudence of domestic and global tribunals. These rules should be understood in the context of each micro-case, not only the overall case of a given conflict or an occupied location, but also that of every incident and even each individual captured in a single attack. This is what we are trying to touch upon in this brief study by bringing up the issue of Palestinian uprisers.
It is worth noting here the dozens of UN General Assembly resolutions regarding the right of the Palestinian people to self-determination and the legality of their struggle “by all available means consistent with the Charter of the United Nations”,Footnote 210 including armed struggle.Footnote 211 It is unreasonable that the General Assembly confirms the legality of the people's struggle, and then considers that those who resist the invading forces are criminals who should be prosecuted for such acts. International law permits civilians to fight “colonial domination and alien occupation … in the exercise of their right of self-determination”, as stated by Article 1(4) of Protocol I. It has been remarked on in this particular context that “[t]he phrase ‘alien occupation’ was introduced with the intention of extending the scope of application of the Protocol [I] to the conflict between Israel and the Palestine Arab people”.Footnote 212 Israel not only cannot, under international law, treat such individuals as criminals, but also its commanders and “judges” who confine Palestinian civilians can be held accountable for carrying out illicit acts punishable under the Rome Statute of the ICC.Footnote 213
Under the Oslo Accords, Israeli occupation forces withdrew from certain Palestinian areas (particularly from Area “A”) in the West Bank and handed over its administration to the PA over the period 1994–97. In 2005, Israel pulled out of Gaza.Footnote 214 Although those areas (especially Area “A”) were reoccupied in the so-called “Operation Defensive Shield” in 2002, the areas do not witness a permanent Israeli military presence. Rather, the areas are placed under the PA's control. However, Israeli forces frequently invade those areas either to arrest individuals, carry out military operations, or regain control of certain areas to protect Israeli settlers. During these incursions, occupiers often encounter popular resistance, particularly in refugee camps and densely populated neighbourhoods that rise up against occupying forces sporadically. Many have been caught by occupation authorities. Persons captured while resisting invading troops of any city, village, or refugee camp should be regarded as POWs,Footnote 215 as long as they carry arms openly and respect the laws and customs of war.
It is clear that levée en masse is confined to territories that are not occupied. Article 2 of the 1907 Hague Regulations has two main criteria for “mass rising”: it should be in “a territory which has not been occupied”, and the inhabitants should not have “had time to organize themselves in accordance with Article 1”.Footnote 216 These conditions are also incorporated into Geneva Convention III. In the ICRC Commentary, it is emphasized that:
[A] mass levy can only be considered to exist during a very short period, i.e. during the actual invasion period. If resistance continues, the authority commanding the inhabitants who have taken up arms, or the authority to which they profess allegiance, must either replace them by sending regular units, or must incorporate them in its regular forces.Footnote 217
Otherwise, those civilians who spontaneously take up arms after the enemy has established itself cannot qualify as POWs for the purposes of Article 4A(6).Footnote 218
However, it appears that the term “occupation” is used in Article 4(a)(6) of Geneva Convention III in a non-technical sense. It may mean “invading” or “entering” certain sections within a portion of an occupied location, not exclusively the initial or total occupation of a state or region.Footnote 219 Such an interpretation can be deduced from Article 51 of the Lieber Code of 23 April 1863 which stated that:
[I]f the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise under a duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war.Footnote 220
The concept of levée en masse as codified by Article 10 of the Brussels Declaration of 27 August 1874,Footnote 221 which influenced Article 4(a)(6) of Convention III, did not specify whether “occupation” or “invasion” indicates an initial invasion or an established occupation. That said, delegates who deliberated the aforesaid draft of Article 10 were of two views. One side confined the definition to the initial occupation, while the others wanted the concept to be sufficiently wide as to incorporate “any inhabitant who, as a result of patriotism, took up arms against the enemy”.Footnote 222 The clause “respect the laws and customs of war”, as a requisite for a levy to enjoy POW status, was inserted to distinguish those who fight to defend their land from ordinary offenders who carry arms “as a brigand or bandit”.Footnote 223 As Naqvi elegantly put it, Convention III “has been interpreted … as creating a presumption that individuals apprehended in the war zone are prisoners of war”.Footnote 224 In its 2020 commentary on Convention III, the ICRC summed up the discussion on the concept by pointing out that a levée en masse “can occur in any part of a territory that is not yet occupied, or in an area where the previous Occupying Power has lost control over the administration of the territory and is attempting to regain it”.Footnote 225
Palestine has witnessed mass risings against invaders since 1917 and Palestinians have risen up from the outset of the Israeli occupation through the present.Footnote 226 In June 1967, the streets of Jerusalem witnessed dozens of inhabitants who spontaneously carried personal weapons to resist the Israeli invasion.Footnote 227 While many were killed,Footnote 228 others were captured.Footnote 229 This triggered, in 1969, an Israeli court to perceive the accused persons as POWs based on levée en masse status. It found out that the area where the accused had been apprehended was under Israeli control. The court stated that the troops “were certainly not invading new areas, and there cannot be the least doubt that, in the period from June 5, 1967, to October, 1968, that ‘population’ had time to ‘form itself into regular armed units’”.Footnote 230 The court was, therefore, ready at the time to describe those involved in random resistance as POWs.
Tens of thousands of Palestinians have been arrested while resisting Israeli troops, notably during the first (1987–93) and second (2000–05) uprisings. Thousands are being kept in Israeli custody, and estimates of those incarcerated by Israel since 1967 top 800,000 Palestinians.Footnote 231 In 2002, for example, the “[Israeli] assaults on Palestinian towns … in Operation Defensive Shield and subsequent military operations in the West Bank resulted in widespread arrests and detentions. In the period between 29 March and 5 May alone, some 7,000 Palestinians were arrested”.Footnote 232 From 12 June through mid-August 2014, to give another example, “between 1,100 and 1,500 Palestinians were detained … Generally they were arrested either during clashes or for alleged participation in clashes”.Footnote 233
Dozens of those captured were civilians who carried weapons openly to resist invading forces using machine guns, Molotov cocktails, grenades, knives, or stones. Thus the issue of levée en masse is likely to arise “in a built-up area where even rudimentary methods are of some value”.Footnote 234 As a case in point, on 26 May 2018, Israeli soldier Ronen Lubarsky died after being attacked by a marble slab thrown on his head during an invasion of the Amari Refugee Camp in Ramallah.Footnote 235 On 13 June 2018, the Israeli army arrested Islam Abu-Humaid who was charged for the attack.Footnote 236 A military court sentenced the man to life imprisonment on 21 July 2019.Footnote 237 A similar case occurred on 12 May 2020, when an Israeli soldier was struck in the head by a rock and died in the West Bank village of Yaabed, west of Jenin, during a military invasion of the village to arrest a group of activists.Footnote 238 An arrest campaign followed in an attempt to find the attackers, and Israeli intelligence accused a forty-nine-year-old man named Nazmi Abu Baker of the stone-throwing that claimed the life of the officer.Footnote 239 These instances prove that the occupation authorities do not confer POW status on those who spontaneously resist invasions, in an evident contradiction to Article 4(a)(6) of Geneva Convention III.
Be that as it may, the concept of levée en masse has attracted several interpretations that may be stretched to anyone who “as a result of patriotism, took up arms against the enemy”.Footnote 240 After all, those who resist the occupier cannot be seen as criminals who use force for personal gains like ordinary offenders. It is for captured criminals to which Geneva Convention IV applies; Article 76 allocates the status of “internees” to “persons accused of offences”, while Article 77 mentions “persons who have been accused of offences or convicted by the courts in the occupied territory”. “Offences” imply “crimes” that are committed against the society of the occupied locations, not against the occupant. For this reason, the occupying power should hand over those charged or convicted, “at the close of occupation, with the relevant records, to the authorities of the liberated territory”.Footnote 241 The purpose of handing over those in pre-trial detention and prisoners is, as it is obvious based on conventional logic, to complete the investigation of the former and administer the sentence for the latter.Footnote 242
At any rate, civilian fighters cannot be classified as “unlawful combatants”. Such treatment violates rules of IHL that, as indicated above, run short of such a typology.Footnote 243 Martin Scheinin, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, observed that the definition of “unlawful combatant” in the 2002 Israeli law, which followed the US model in the treatment of Taliban and Al-Qaeda captives in the wake of the September 11, 2001 attacks,Footnote 244 “includes persons who have ‘indirectly’ participated in hostile acts against the State of Israel”.Footnote 245 This term “remains undefined and is therefore open to abuse and inconsistent with the principle of legality”.Footnote 246 Israeli legislative acts, as well as court rulings, that treat Palestinians who target troops as “terrorists” or “unlawful combatants” lack any international legal foundation.
To conclude, individual Palestinians who participate in armed resistance as part of non-organized groups to confront military invasions or who are involved in fighting based on an individual initiative out of patriotism to defend their unoccupied or liberated land fall under the definition of levée en masse according to international humanitarian law and should be treated as POWs as long as they carry arms openly and respect the laws and customs of war.
D. Political activists
Israeli Occupation authorities frequently arrest activists not involved in hostilities, such as journalists, human rights defenders, affiliates of factions, elected parliamentarians, academics, and ministers. In a report submitted to the United Nations General Assembly in November 2007, a leading UN expert on the subject pointed out that “45 of 132 members of the Palestinian Legislative Council have been charged with affiliation with, or membership in, a proscribed organization and are currently detained by Israel”.Footnote 247 He urged caution “to ensure that counter-terrorism is never used as a means of obfuscating the existence or development of democracy”.Footnote 248 When capturing these persons, Israeli forces rely on military orders that permit the incarceration of anyone who holds anti-occupation views or belongs to a party, political, or social association.Footnote 249 Article 68 of Military Order No. 378 of 20 April 1970,Footnote 250 as a case in point, states that “[a]ny person who commits any act which disturbs or is likely to disturb the peace or public order shall be guilty of an offence”. Other military orders allow the administrative detention of individuals, including children, without charge or trial.Footnote 251
Such persons are considered protected civilians according to Geneva Convention IV. Indeed, “all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians”.Footnote 252 These individuals should not face arrest, save for perpetration of crimes in breach of the national penal legislation. In this context, Article 64 of Convention IV stipulates that the occupying power must respect the enforced penal law in the occupied territory. It is a fundamental principle underlying the law of occupation that the occupier is not sovereign over the controlled region.Footnote 253 According to the ICRC commentary, the legislative capacity of occupation forces may not serve as a means of oppressing local populations.Footnote 254 Individual politicians should be treated as civilians even if the parties to which they belong run a military branch.Footnote 255 In its decision regarding prosecutors incarcerated by the US during the invasion of Grenada in 1983, the Inter-American Commission for Human Rights found that, with no indication that the captives had taken part in hostilities, these activists remained civilians from the perspective of Geneva Convention IV.Footnote 256
Crimes in an occupied territory are punishable based on the domestic law enforced in the land. Whereas offences in Gaza are sanctioned by the British-era Penal Code Ordinance No. 74 of 14 December 1936,Footnote 257 the West Bank prosecutes based on Jordanian Penal Code No. 16 of 10 April 1960.Footnote 258 These codes regulate standard crimes such as murder, assaults, theft, rape, and slander.Footnote 259 The occupant cannot legislate in an occupied soil that alters the existing law, save for narrow exceptions under Article 64 of Geneva Convention IV that by no means include the aforementioned Israeli military orders or the Unlawful Combatants Law. As commented on by the ICRC, the exceptional legislative powers of the occupier “are of a strictly limitative nature. The occupation authorities cannot abrogate or suspend the penal laws for any other reason [stated in Article 64]– and not, in particular, merely to make it accord with their own legal conceptions”.Footnote 260 As such, the legality of these enactments is questionable.
Israeli military orders that criminalize and remove the liberty of political or social activists are illegitimate. Captivity of such individuals constitutes, at the very least, arbitrary detention under international human rights law that aligns with humanitarian law with regard to fair trial standards for those held under the occupant's authority.Footnote 261 In accordance with IHL, such incarceration by virtue of Article 147 of Convention IV forms a “grave breach” which includes, inter alia, “unlawful confinement of a protected person … or wilfully depriving a protected person of the rights of fair and regular trial”. In turn, such breaches qualify, under the Rome Statute, as “war crime[s]”, that include “[w]ilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial”Footnote 262 and “unlawful confinement”.Footnote 263 Such confinement simultaneously qualifies as a “crime against humanity” that comprises “[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”,Footnote 264 particularly due to the fact that such acts are carried out “as part of a widespread or systematic attack directed against … civilian population, with knowledge of the attack”.Footnote 265 The ICC Pre-Trial Chamber Decision of 5 February 2021 on the Situation in Palestine,Footnote 266 and the subsequent Prosecutor's announcement of 3 March 2021 to initiate an investigation into acts committed in Palestine,Footnote 267 render the ICC competence on the issue of Palestinian prisoners incarcerated by Israel more likely than ever.Footnote 268 However, tackling international criminal law in detail falls beyond the scope of this paper and may require further research.Footnote 269
III. Conclusion
The United Nations General Assembly's decision to upgrade the status of Palestine to a non-member observer state encompasses a wide range of effects on the Palestinian-Israeli conflict, particularly on the legal front. This move empowered Palestine to accede to over a hundred treaties, including international human rights and humanitarian law instruments, notably the Geneva Conventions and Additional Protocol I. Such accession has brought an end to Israel's self-proclaimed controversy on Palestine's statehood. Any doubts cast on Palestine as a State Party to an international armed conflict has become a fading past.
With Palestine's accession to Geneva Convention III, Palestinian citizens who took part in belligerent acts against their occupier should be treated as POWs due to the fact that they belong to a State Party to an armed conflict. These captives fall under three categories: members of official military or security forces, affiliates of various resistance groups, and uprisers who fight the occupier spontaneously on an individual basis without prior organization. Contrary to the established rules of IHL, Israel does not make any distinction regarding the treatment of these three types. In Israel's eyes, all those who resist the occupation troops form either “criminals”, “terrorists”, or “unlawful combatants”. Unilateral Israeli treatment of its captives does not hold water under international law and such Israeli actions may trigger accountability based on international criminal law. As Palestine has become a State Party to the Rome Statute, and particularly as the ICC decided in 2021 that it possesses jurisdiction to prosecute crimes occurring in the territory of Palestine, Israeli officials who continue to deprive Palestinians (including Israeli politicians, military commanders, prison officials, and even certain prosecutors and judges) of their liberty may well be charged with committing war crimes before the ICC. The mere fact of confining POWs after the cessation of hostilities, regardless of the incarceration conditions, may constitute a ground for international criminal liability.
The confinement of other Palestinians, particularly politicians and opinion-makers, also runs counter to international law, both human rights and humanitarian law, as the freedoms of association, assembly, and expression are guaranteed under core human rights treaties and Geneva Conventions to which the State of Palestine and the State of Israel are parties, as well as in accordance with the applicable domestic law in Palestine. Notwithstanding that such incarceration is unlawful, the detaining power is under a duty to treat captives based on Conventions III or IV. Convention IV is designated essentially to the detention and imprisonment of civilians who carry out ordinary crimes during the time of occupation to be tried by the domestic courts of the occupied territory. Perpetrators of such offences, who may be caught by the occupier, should be transferred to Palestinian courts or prison facilities for adjudication or to serve their sentences within the occupied region. With the accession of Palestine to Conventions III and IV, Israel can no longer legally justify its failure to apply either or both Conventions, as the case may be, to incarcerated Palestinians.
Acknowledgements
Mutaz M. Qafisheh, Professor of International Law, College of Law and Political Science, Hebron University, Palestine; PhD in International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland. I acknowledge with gratitude the support of Nicole TRUDEAU and Najlaa SHRITEH. Ihssan Adel Madbouh, Chair, Law for Palestine Association; PhD candidate and researcher, Institute of Development Research and Development Policy, Ruhr-University Bochum, Germany. Special thanks to Martina SHAKYA, Jasmin FRITZSCHE, and Laura HOFMANN for their valuable feedback.
Funding Statement
None.
Conflict of interest
None.
