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International Humanitarian Law In the Palestinian Legislation

The importance of International Humanitarian Law in the Palestinian context stems from the fact that it constitutes the legal system that must be applied to occupied territory. It therefore forms the legal framework that governs the behavior of Israel, as a power of belligerent occupation in control of the Palestinian territories, and also governs the relations between Israel and the Palestinian people under occupation.

Israel refuses to recognize the status of the Palestinian territories as occupied, and refuses to admit that it is an occupying power. The unfounded Israeli justification for this is based on the allegation that no state had sovereignty over the West Bank (including East Jerusalem) and Gaza Strip when it occupied them in 1967, and therefore theIsraeli authorities are merely administering these territories until their sovereign status is decided upon.

Instead of using the expression ‘the occupied territories’, Israel has been employing other terms such as ‘theadministered territories’, ‘the disputed territories’, or even just ‘the territories’ without any specification. The main motive for Israel to avoid admitting the Palestinian territories are indeed ‘occupied’ is its desire to evade its legal responsibilities as an occupying power, and to avoid returning these lands to their original owners in the future.

The international community, however, including states and governmental and non-governmental organizations,

recognized Israel’s status from 1967 as a power of belligerent occupation in the Palestinian territories. Resolutions issued by the UN Security Council and the General Assembly after the beginning of the occupation, as well as the advisory opinion of the International Court of Justice pertaining to the separation wall in 2004, all affirmed the status of the Palestinian territories as ‘occupied’.

The current internal tension between the two main Palestinian powers, Fatah and Hamas, leads us to focus again on the rules and provisions of International Humanitarian Law, which in addition to governing the behavior of belligerents in international conflicts - including occupation - also governs the actions of belligerents during internal armed conflicts. Indeed, the two situations are in many ways similar, but there are two fundamental differences between them: in internal conflicts or civil wars there are no prisoners of war, and detained persons are treated as transgressors of domestic law, and civil wars do not produce occupations.

The PLO ratification of the Geneva conventions and their two annexes

The roots of the Palestinian Liberation Organization’s relation with the Fourth Geneva Convention go back to 1949, and its relation with their two protocols goes back to 1977 when the PLO endorsed the concluding statement of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts.

 On May 4, 1989 the PLO Executive Committee, which is mandated to run the government affairs of the state of Palestine, decided to abide by the four Geneva Conventions of 1949 and the two additional protocols of 1977. On July 7, 1989 the PLO officially notified the Swiss Federal Council of its commitment, a unilateral move which is still valid. However, this endorsement was rejected by Britain, the US and Israel, despite being welcomed by many parties including non-aligned countries and the United Nations Commission on Human Rights (UNCHR) at its 46th session held in Geneva in March 1990.

 The Palestinian Revolutionary Penal Code of 1979

The PLO issued the Palestinian Revolutionary Penal Code in 1979, and while in exile established revolutionary courts of various types to deal with cases of violations of the laws issued by the PLO. The jurisdiction of these courts includes trying crimes and disciplinary offences perpetrated by members of the Palestinian security forces. These courts function as penal and disciplinary courts for military personnel, and also look into crimes perpetrated by civilians against military personnel, or by military personnel against civilians. They function in accordance with the Palestinian Revolutionary Procedural Law and apply the Revolutionary Penal Code, both of which were issued by the PLO in 1979. Military courts are divided into Central Courts, Permanent Courts, and Special Courts. The important question, however, is what is the relation between the Palestinian Revolutionary Penal Code and International Humanitarian Law?

 The term ‘prisoner of war’, which refers to one of the most important categories afforded protection by International Humanitarian Law, was mentioned in Article 8 of Chapter 3 of the Palestinian Revolutionary Penal Code of 1979. The article states that prisoners of war are among those who are covered by that law, but no further details are given. The PLO subjecting prisoners of war to its military law is competent with Articles 82 & 83 of the Third Geneva Convention Relative to the Treatment of Prisoners of War, of August 12, 1949. Article 82 of this convention states the following:

‘A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.

‘If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.’

 Article 84 also states that:

‘A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

‘In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.’

The Palestinian Law also tackles the protection of dead, wounded and sick people in armed conflicts and punished those who violate their human dignity or their right to life. Article 157 of the Palestinian Revolutionary Penal Code states that any one who steals the body of a dead, injured, or a sick person, even if such a person is an enemy present in an area of military operations, is punishable with hard labor.

Article 158 of the same law states that any person who inflicts an act of violence on an injured or sick person who can not defend himself is also punishable with a term of hard labor. Although no instances of Palestinian military courts actually investigating such cases are recorded, these articles are nevertheless in conformity with the rules of International Humanitarian Law as manifested in human rights laws which guarantee respect for the mental and physical safety of individuals who become incapable of fighting on the battlefield, who should enjoy protection and humane treatment without undue discrimination.

Several articles in the four Geneva Conventions of 1949 and their protocols of 1977 also assert this. For instance, Article 12 of the First Geneva Convention of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field states the following:

  ‘Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances.

They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.

Only urgent medical reasons will authorize priority in the order of treatment to be administered. Women shall be treated with all consideration due to their sex. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care.’

 Article 3 of the same convention, which is common to the four Geneva Conventions of 1949, also states that:

 ‘In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;(c) outrages upon personal dignity, in particular humiliating and degrading treatment;(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’

 The PLO’s endorsement of the concluding statement of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts of 1977 had a noticeable impact on the Palestinian Revolutionary Penal Code of 1979, leading it to adopt important provisions which were called for in the Geneva Conventions of 1949 and their two additional protocols. However, this Penal Code is still subjected to fierce criticism by local, regional, and international human rights organizations.

One reason for this criticism is the fact that this law allows the imposition of capital punishment on perpetrators of one of 42 various violations. This law is applied by special military or state security courts activated by the Palestinian Authority, which are the courts which have imposed most of the death sentences handed out since the establishment of the Palestinian Authority. The death penalty imposed by the Palestinian judicial system contradicts basic standards in International Human Rights Law in several respects, including the following:

· The large number of instances (42) for which capital punishment is imposed does not match the demand to restrict this punishment to include only the gravest of violations.

· Trials conducted in the Palestinian Authority’s special courts are in essence ‘field’ trials, distinguished by blatant disregard of the basic rules of judicial procedures. Defendants in such courts do not have a real possibility of defending themselves.

· Sentences issued by these special courts cannot be appealed, and their enforcement is conditional only on the endorsement of the Palestinian Authority President.

 Amended Palestinian Basic Law of 2003

The Palestinian Basic Law, which is the constitution of the interim period before the final establishment of a Palestinian state, did not include provisions specifically related to International Humanitarian Law. However, Article 10 asserts that human rights and basic freedoms are binding and should be respected. The Palestinian National Authority (PNA) is exerting efforts to adopt regional and international covenants which protect human rights.

Mindful of the theory of ‘universal applicability’, which considers Human Rights Law as universally applicable under all circumstances, even in situations of armed conflict and occupation, this text in the Basic Law and the one that follows it indicate an implicit commitment by the PNA to the rules and principles of Humanitarian Law. The decision of the PLO Executive Committee to endorse the four Geneva Conventions of 1949 and the two protocols of 1977 is further evidence that the Palestinian leadership calls for it to be respected.

The Palestinian Children’s Law No. 7 of 2004

Article 7 of the Palestinian Children’s Law No. 7 of 2004 asserts that children have a priority right to enjoy protection, care and assistance in all circumstances. This article forces the state to protect the lives of children and uphold all their rights in cases of emergency, disaster and armed conflict, as well as taking appropriate measures to prosecute anyone who perpetrates war crimes or crimes against humanity against children. Article 46 of this law prohibits the use of children in military activities and armed conflicts, and makes it obligatory for the state to take the necessary measures to guarantee this. It also obliges the state to take appropriate measures to rehabilitate children who are victims of armed conflict, mentally or physically, and to reintegrate them socially.

These articles are in harmony with Article 77 of the First Additional Protocol of the Geneva Conventions, which states the following:

‘1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.

 2. The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.

3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.

4. If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5.

5. The death penalty for an offence related to armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed.’

Article 7 and Article 46 of the Palestinian Children’s Law No. 7 of 2004 conform to Article 38 of the Convention on the Rights of the Child, adopted by the UN General Assembly in its resolution No. 25/44 dated November 20, 1989 and put into action on September 2, 1990 in accordance with Article 49 of the Convention. The Article makes it obligatory for state parties to respect the rules of International Humanitarian Law which are related to children in armed conflicts, as well as ‘taking all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities’. The same article also asserts that in recruiting among those persons who have attained the age of fifteen years but who are under the age of eighteen, states parties should give priority to those who are oldest. The Article also obliges states ‘in accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, take all feasible measures to ensure protection and care of children who are affected by an armed conflict.’

Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (UN 2000), states that armed groups which are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years, and that states parties should take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.

From the perspective of International Criminal Law we refer here to the International Criminal Court. In the basic Statute of this court, which was adopted in Rome on July 17, 1998, the involvement of children under 15 years old in war activities, or their recruitment into national armed forces when an international conflict breaks out, are considered war crimes which come under the jurisdiction of the International Criminal Court, and states must enact legislation that permits pursuing the perpetrators of such crimes in order to prevent them from occurring.

Status of the Emblem of the International Movement of the Red Cross and Red Crescent in the occupied Palestinian territories:

There are local laws in many countries regulating the use of the international Emblem of the Red Cross and Red Crescent Movement, but Palestinian legislation is totally devoid of any reference to it. This has led to a situation where this international Emblem has lost the respect and protection accorded it in the Geneva 1949 Conventions and their additional protocols. Many parties in the Palestinian territories have used this Emblem without any significant control.

The lack of a law that regulates the use of the Emblem has led to its misuse by some Palestinian individuals and institutions, and to its employment in circumstances unrelated to the humanitarian duties that its carrier must be fulfilling.

The Israeli occupation forces have exploited some of these instances in which the Emblem was misused and used them as an excuse for imposing restrictions on the movement of ambulances, obstructing their work, subjecting them to inspection, removing their patients, holding them for hours at checkpoints, and in many cases not allowing them to cross. In addition, grave violations were perpetrated against legitimately-serving individuals by targeting them with bullets, shells and missiles, leading to many deaths and injuries of medical personnel. Recent PRCS statistics reveal that 17 medical technicians and volunteers were killed and 425 others were injured in the period between September 29, 2000 and the end of November 2007 while they were carrying out their humanitarian duties.

Moreover, the Israeli occupation forces detained 81 medical personnel and damaged 160 ambulances, of which 31 were completely destroyed. Over 2,380 cases were recorded of obstruction at military barriers, which quite often had a serious impact on the health of sick and injured people.

Such a state of affairs highlights the need for a Palestinian law to regulate the use of the emblem in time of peace and war. This noble goal should also be realized because of its great importance in presenting Palestinian society as one which respects the principles of International Humanitarian Law as set out by the Geneva conventions.

On March 8, 2006, a Presidential degree was issued by Palestinian President Mahmoud Abbas, aimed at promoting the work of the PRCS and respect of its emblem, which is composed of a red crescent on a white background. The Presidential Decree also aimed at protecting the PRCS’s rights and privileges. The PRCS and several Palestinian governmental and non-governmental institutions believe that enacting the Emblem Law will be a significant step forward, in harmony with all international agreements related to respecting the international emblems of the Red Cross and Red Crescent.

The PRCS took the initiative to hold a workshop in March 2005, under the title ‘Protection and Respect for the International Movement of the Red Cross and Red Crescent Emblem’. The Palestinian Ministries of Interior, Foreign Affairs, Justice, Health and Telecommunications took part in the workshop, as did several Palestinian health institutions, the International Committee of the Red Cross, the International Federation of the Red Cross and Red Crescent Societies, and representatives of some national societies abroad. The workshop’s recommendations asserted the need for issuing a Palestinian emblem law.

A general guidance committee was formed to follow up the issue of enacting an Emblem law and to promote awareness of its significance. The Committee included the PRCS, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies, the Palestinian National Committee of the International Humanitarian Law, the Ministries of Health, Justice, Interior, Communications and Education, a representative of Palestinian NGOs functioning in the field of health, and the Fatwa and Legislation Department. Two committees were also formed: a technical one for drafting the emblem Law, and another for awareness and publicity.

When considering Palestinian legislation related to International Humanitarian Law, reviewed above, we can see that such laws are still limited, despite attempts by some non-governmental parties to expand them.

Internal conflict in the Palestinian territories among some Palestinian factions gave significant indications of the grave situation which humanitarian conditions may slip into in the occupied Palestinian territories if such fighting escalates in the future. Several incidents demonstrated that the basic rules of conduct during conflicts were not observed. These included intentionally targeting property when unjustified by military necessity, killing individuals not participating directly in the fighting, attacking hospitals, restricting the movement of ambulances, and random shooting which led to deaths and injuries among civilians.

We therefore call on all concerned parties to give priority in their future plans to promoting the tenets of International Humanitarian Law among the various Palestinian security agencies and military groups without exception, and to raise awareness of the rules and principles of this law.

.End

Abdel Haq, Ahmad, (Arabic) ‘Baina Al-Sias wa al-Qanoon (Between the political and the Law: the issue of Palestinian state membership in the UN)’ Nicosia, Besan Press, 1990. Pp. 150-160.

Military or Revolutionary Courts. The Palestinian National Information Center. Palestine. http://www.pnic.gov.ps.arabic/gover/gov31.html.

‘The Death Penalty in the Territories of the Palestinian National Authority’ The Israeli Information Center for Human Rights in the Occupied Territories (B’Tselem), Israel, http://www.btselem.org/arabic/PNA

From a news story published in Al-Quds Arabic Daily, March 13, 2005.