by: Dr. Abdulrahman Muhammad Ali

(Middle East Monitor (MEMO) London)

Ahrar Studies & Human Right


       The status of prisoners of war is a very complicated issue in international humanitarian law. Many people think – wrongly – that all of the Palestinian prisoners in Israeli jails are to be considered as prisoners of war. International humanitarian law, in particular the Third Geneva Convention of 1949 and its protocols, gives a very precise definition of “prisoner of war” which is not applicable to the majority of the Palestinians detained by the occupying power, Israel. To understand this issue; we can divide the subject into two parts:

       Reference to prison names and locations and the number of prisoners – male, female and children should be mentioned. We can refer here to Israel’s violation of article 76 of Fourth Geneva Convention which states that “protected persons” accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein.

I: Legal status of Palestinians prisoners in international humanitarian law

In this section we should analyse different issues to see who the prisoners of war are.

       Who’s considered as a “combatant” during an armed conflict?

        We should analyse article 4 of the Third Geneva Convention and all the categories mentioned by the article to see upon whom the definition of “prisoner of war” could be applied in the case of palestinian prisoners.

Article 4 of the Third Geneva Convention states:

“A. Prisoners of war… 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.

        We can notice after detailed analysis that applying the definition given by Article 4 of the Third Geneva Convention on Prisoners of War, that the majority Palestinian prisoners cannot be considered as prisoners of war. It might be that this definition might apply to any Palestinian captured in Gaza by the occupation power since Hamas won control of the territory in the 2006 election.

       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”.

       We should bear in mind that Israel is not a signatory to the Protocol, which was signed by almost 150 countries around the world. This means that Article 43 might not be used in the case of Palestinian prisoners or it should be applied as part of customary rule as many authors suggested.

       Applying the definition given in Article 4 of the Fourth Geneva Convention, the majority of Palestinian prisoners should be treated by the occupying forces under the rules applicable to the treatment of civilians in time of war:

       Art 4: “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.”

      We could also quote other articles applicable to civilians, such as 41, 42, 43, 68 and 78.

Doubtful prisoners of war status

        It will be advisable to deal with article 5/2 of the Third Geneva Convention which states that “…Should 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, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

 Definition of civilian

        As we argue that the majority of prisoners should be treated as civilians and thus should be protected by the Fourth Geneva Convention, the definition of “civilian” according to the Geneva Convention, in particular article 50 of the First additional protocol, will be very important to understand this issue and in particular the rights which the prisoner should enjoy.

        Unlawful combatant created by the judicial system of the occupying power Israel passed the Incarceration of Unlawful Combatants Law in 2002. An “unlawful combatant” is defined by Israeli law as “a person who participated, whether directly or indirectly, in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel regarding whom the conditions stipulated in international humanitarian law for granting prisoner-of-war status do not apply.”

       The definition of “unlawful combatant,” stands in total contradiction to the rules of international humanitarian law. Combatants, as defined in Article 4 of the Third Geneva Convention, are legitimate targets, but if they are taken prisoner, their prisoner-of-war status grants them protection and rights. According to this convention, among other things, prisoners of war must not be punished.

       As we mentioned before, the Third Geneva Convention does not apply to a person who does not fall under the definition of “combatant”; rather, such a person is considered a “civilian” protected under the Fourth Geneva Convention.                                               

Administrative detention of Palestinians

        An overview of the military system (military order, military courts) which governs the Occupied Palestinian Territories would help to understand better this issue regarding administrative detention.

       Article 78 of the Fourth Geneva Convention allows the occupation power to use administrative detention as a preventative measure in cases where a person poses an immediate danger to state security or public order; it should be used sparingly, and only when absolutely necessary for security.

       The legal sources for the standards for limiting the use of administrative detention in international humanitarian law can be found, among other places, in Article 75 of the First Protocol, 42 and 78 of the Fourth Geneva Convention, considered as reflecting customary international law.

        Israel uses administrative detention extensively, detaining hundreds of Palestinian residents of the Territories every year. Many administrative detainees are held by Israel for long periods with no real evaluation of the reliability of the classified material used against them.

        Administrative detention is not to be used as a means of punishment, but rather only as a step for preventing future danger; this is anchored in Israeli case law. An administrative detention order is illegal if issued for any other goal, even if that goal is security-related, and is certainly illegal if issued as an attempt to bear upon the detainee to collaborate or as punishment for his refusal to do so. International humanitarian law is also unequivocal regarding the question of collaboration, and views any such attempt as a grave violation of the Fourth Geneva Convention, articles 31, 51 and 147.

        In sum, Israeli use of administrative detention is in contradiction with international humanitarian law. We could make reference to many cases from the military court relating to administrative detention. See various reports published by Israeli NGOs attached to this document.

        During our research we should refute the appellation made by Israel when they create another category of “Palestinian prisoners whose hands are stained with blood” (a term used by the Israeli government) and those whose hands are not.

       The occupying power has no right to make this appellation and the Fourth Geneva Convention does not distinguish between prisoners whose “hands are stained with blood” and those whose hands are not.

        As the author will find when studying the definition of combatant, the latter has the right to kill the enemy as long as they respect the Geneva Convention, which distinguishes between military targets and civilian targets.

As we explained earlier, there are two categories of prisoners. The first is the Palestinian prisoner of war; the second is the Palestinian prisoner of the occupying power who is considered to be a civilian. Now we are going to analyse the rights of prisoners and Israeli violations of their rights.

II. Israel’s violation of Palestinian prisoners’ rights

         Under this second part the author could analyse the rights of Palestinians prisoners of war (Third Geneva Convention) and the rights of Palestinian prisoners under occupation considered as civilians (Fourth Geneva Convention) . At the same time as the author will recall these rights he should be able to provide examples of each violation of these rights by the occupation power, citing cases from the military courts or from NGOs’ report.                                  

The rights of Palestinian prisoners of war

         The Third Geneva Convention provides all the rights relating to Palestinian prisoners of war. We can mention the following articles as example: articles 13-14, human treatment without distinction between prisoners (Third Geneva Convention). Article 20 and  75 of first additional Protocol. Prisoners of war have the right not to be arrested arbitrarily, to have a fair trial in a fair and neutral court to judge the prisoners identified in articles 82-108 of the Third Geneva Convention.

Palestinian prisoners’ rights

        Articles 27, 31-32, 33-34 of the Fourth Geneva Convention include the rights of prisoners not to be arrested arbitrarily, to have a fair trial, and to have a fair and neutral court to judge the prisoners as stated in Articles 64-79, 117 and 126 of the Fourth Geneva Convention.

Special rights of women and child prisoners

          We can refer to articles 25, 29and 108, of the Third Geneva Convention. Articles 24, 27, 50 of the Fourth Geneva Convention. Articles 75/5, 76, 77, 78of the first additional protocol.

Liberation of the prisoners

          We can refer to different articles of the Third Geneva Convention, article 21, 109, and article 11826, which stipulated that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. Article 118 should have been applied after the occupying power pulled out of Gaza which Israel has never respected as many other rights.

         We can propose some other measures such as an exchange of prisoners like the one which happened between Hamas and Israel as a means to release prisoners.

       We can encourage the initiative made by different NGOs and the Arab League to solicit the General Assembly of the United Nations to request an advisory opinion from the International Court of Justice on the legal status of Palestinian prisoners. (T/P02/E1)

Mi’raj News Agency (MINA)

Source : Ahrar Center for Studies & human Rights

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