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II. The Legal Status of
Palestinian and Arab Prisoners according to the Four Geneva Conventions of
1949
Resulting from
our research and from consideration of the Geneva Conventions, we have
concluded that the most persistently recurring questions concerning the
legal status of Palestinian and Arab prisoners held in Israeli prisons
include the following:
What is the
legal status of these prisoners? Are they considered prisoners of war or
prisoners under occupation?
Does Israel have
the right under international law to discriminate between Palestinian
prisoners who are said to have “blood on their hands” and other prisoners,
or should both categories benefit equally from a program of early release?
Is there a
difference between the legal status of Palestinian prisoners coming from
the West Bank/Gaza Strip and of those prisoners coming from East
Jerusalem?
What is the
legal status of Arab detainees who come from Israel?
During the final
stage of the Peace Talks between Israel and the PNA, is Israel obliged to
release all prisoners coming from the West Bank and the Gaza Strip?
Irrespective of
the Peace Agreement and of whether Israel is still in total or partial
control of parts of the Palestinian-controlled territories,
is Israel
obliged (by virtue of the Geneva Conventions) to incarcerate prisoners
coming from the Palestinian Territories in prisons situated in the
Palestinian Territories?
The PHRMG
studied the relevant provisions of the Geneva Conventions signed by almost
all the countries of the world, including Israel, in order to establish a
response to the aforementioned questions.
1. Palestinian
detainees: war prisoners or occupation prisoners
Applying the
definitions given in Article 4 of the Third Geneva Convention on Prisoners
of War, Palestinian prisoners cannot be considered prisoners of war.
“A. 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, fulfill the following conditions:
(a) that of
being commanded by a person responsible for his subordinates;
(b) that of
having a fixed distinctive sign recognizable at a distance;
(c) that of
carrying arms openly; (d) that of conducting their operations in
accordance with the laws and customs of war.
(3) Members of
regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power.
(4) Persons who
accompany the armed forces without actually being members thereof, such as
civilian members of military aircraft crews, war correspondents, supply
contractors, members of labour units or of services responsible for the
welfare of the armed forces, provided that they have received
authorization, from the armed forces which they accompany, who shall
provide them for that purpose with an identity card similar to the annexed
model.
(5) Members of
crews, including masters, pilots and apprentices, of the merchant marine
and the crews of civil aircraft of the Parties to the conflict, who do not
benefit by more favourable treatment under any other provisions of
international law.
(6) Inhabitants
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 the laws and customs of war.
B. The following
shall likewise be treated as prisoners of war under the present
Convention:
(1) Persons
belonging, or having belonged, to the armed forces of the occupied
country, if the occupying Power considers it necessary by reason of such
allegiance to intern them, even though it has originally liberated them
while hostilities were going on outside the territory it occupies, in
particular where such persons have made an unsuccessful attempt to rejoin
the armed forces to which they belong and which are engaged in combat, or
where they fail to comply with a summons made to them with a view to
internment.
(2) The persons
belonging to one of the categories enumerated in the present Article, who
have been received by neutral or non-belligerent Powers on their territory
and whom these Powers are required to intern under international law,
without prejudice to any more favourable treatment which these Powers may
choose to give and with the exception of Articles 8, 10, 15, 30, fifth
paragraph, 58-67, 92, 126 and, where diplomatic relations exist between
the Parties to the conflict and the neutral or non-belligerent Power
concerned, those Articles concerning the Protecting Power. Where such
diplomatic relations exist, the Parties to a conflict on whom these
persons depend shall be allowed to perform towards them the functions of a
Protecting Power as provided in the present Convention, without prejudice
to the functions which these Parties normally exercise in conformity with
diplomatic and consular usage and treaties.
C. This Article
shall in no way affect the status of medical personnel and chaplains as
provided for in Article 33 of the present Convention.”
However, the
First Protocol to the Geneva Convention, which was signed in 1977 and
which is applicable to wars of national liberation, contains a wider
definition of the terms “revolutionaries” and “prisoners of war”. Under
Article 43 of the Protocol, some Palestinian detainees can be considered
prisoners of war:
The armed forces
of a Party to a conflict consist of all organized armed forces, groups and
unites those 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.
Members of the
armed forces Party to a conflict (other than medical personnel and
chaplains covered by Article 33 of the Third Convention) are combatants,
that is to say, they have the right to participate directly in
hostilities.
Whenever a Party
to a conflict incorporates a paramilitary or armed law enforcement agency
into its armed forces it shall so notify the other Parties to the
conflict.
Israel is,
however, not a signatory to the Protocol which was signed by almost 150
countries around the world. This means that Article 43 cannot be used in
the case of Palestinian prisoners.
Applying the
definitions given in Article 4 of the Fourth Geneva Convention,
Palestinian prisoners should be treated by the occupying forces under the
rules applicable to the treatment of civilians in time of war:
“Persons
protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation,
in the hands of a Party to the conflict or Occupying Power of which they
are not nationals.
Nationals of a
State which is not bound by the Convention are not protected by it.
Nationals of a neutral State who find themselves in the territory of a
belligerent State, and nationals of a co-belligerent State, shall not be
regarded as protected persons while the State of which they are nationals
has normal diplomatic representation in the State in whose hands they
are.”
2. Does Israel
have the right to discriminate against Palestinian prisoners whose “hands
are drained in blood” (a term used by the Israeli government) and those
whose hands are not?
The Fourth
Geneva Convention does not distinguish between prisoners whose “hands are
drained in blood” and those whose hands are not.
3. Is there a
difference between the legal status between Palestinian prisoners coming
from the West Bank/Gaza and those coming from East Jerusalem?
The short answer
is no. Israel is required to hand over all prisoners from these areas to
the PA as soon as the final negotiations of the Peace Accords between
Israel and the PA are implemented. According to Article 47 from the Geneva
Convention on the protection of civilians in time of war:
“Protected
persons who are in occupied territory shall not be deprived, in any case
or in any manner whatsoever, of the benefits of the present Convention by
any
change
introduced, as the result of the occupation of a territory, into the
institutions or government of the said territory, nor by any agreement
concluded between the authorities of the occupied territories and the
Occupying Power, nor by any annexation by the latter of the whole or part
of the occupied territory.”
4. What is the
legal status of Palestinians who are from Israel?
Palestinian
prisoners who are from Israel are not protected by the Geneva Conventions.
Their case however, can be addressed separately in the Peace Accords.
5. In the light
of the Geneva Conventions’ rules on the withdrawal of an occupying power,
will Israel have the right to detain Palestinian prisoners once it has
signed a final Peace Agreement with the Palestinian Authority?
According to
Article 77 of the Fourth Geneva Convention on the protection of civilians
in time of war, Israel is required to hand over all prisoners to the PA at
the end of the Occupation.
“Protected
persons who have been accused of offences or convicted by the courts in
occupied territory, shall be handed over at the close of occupation, with
the relevant records, to the authorities of the liberated territory.”
Consequently,
the PA would have the discretionary right to release these prisoners or to
detain them in its prisons. The PA has the right to continue detaining
these prisoners until they complete their prison sentence
6. Irrespective
of the Peace Agreement and of whether Israel is still in total or partial
control of parts of the Palestinian-controlled territories,
is Israel
obliged (by virtue of the Geneva Conventions) to incarcerate prisoners
coming from the Palestinian Territories in prisons situated in the
Palestinian Territories?
It is illegal to
keep Palestinian prisoners in Israeli prisons or transfer prisoners from
Palestinian prisons to Israeli prisons during the time of Occupation.
According to Article 76 of the Forth Geneva Convention on the protection
of civilians in time of war:
“Protected
persons accused of offences shall be detained in the occupied country, and
if convicted they shall serve their sentences therein. They shall, if
possible, be separated from other detainees and shall enjoy conditions of
food and hygiene which will be sufficient to keep them in good health, and
which will be at least equal to those obtaining in prisons in the occupied
country.
They shall
receive the medical attention required by their state of health. They
shall also have the right to receive any spiritual assistance which they
may require..”
The notion of
Palestinians having “blood on their hands”: arguing the case from another
point of view
The way in which
the Israeli government labels Palestinian prisoners who are said to have
“blood on their hands” gives the impression that the Israelis cannot be
criticized for the same offence. There have however also been many
Palestinian victims. Going back in time to when the State of Israel was
established, many innocent Palestinians were killed, even massacred, with
their land being confiscated. Israel treats these events as a contribution
by nationalists to fulfilling the Zionist dream and to the building the
State of Israel. Conversely, Israel considers those who resist the
Occupation as Palestinians who have “blood on their hands.”
Yitzhak Hasson,
former member of (Lekhi) Zionist movement and a member of the Peace
movement, has himself admitted to the same offence. “I also have blood on
my hands. I had a direct order from Yitzhak Shamir, who was my commander
in the secret organization, to take part in the killing of innocent
residents from two Palestinian villages.” Prior to 1948, hundreds of
members from Jewish secret organizations had committed similar violence.
Since then, thousands of Israeli soldiers have been responsible for
arresting thousands of Palestinians and for detaining them in Israeli
jails. These are the Palestinians whom Prime Minister Benjamin Netanyahu
refuses to set free, claiming that they have “blood on their hands.”
On 3 February 1999, Israeli
President Ezer Weizman commuted parts of Israeli prisoners’ sentences.
These had been involved in the killing of Palestinians. Boram Shkulnik
killed a Palestinian whose hands were cuffed behind his back at his time
of death. His sentence was decreased from 15 years to 11. In November
1992, Nehmeya Mishabaum killed a Palestinian who had thrown a hand grenade
into one of the markets in the Old City of Jerusalem. His sentence was
decreased from 12 years to 10. The two brothers Yehudaf and Eitan Kahalani
attempted to kill a Palestinian. Their sentence was decreased for 12 years
to 4. In May 1990, Ami Poper killed seven Palestinian workers in Rishon
Letzion near Tel Aviv. His sentence was decreased from life imprisonment
to 40 years.
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