Wednesday, June 25, 2014

An EoZ reader wrote to Amnesty International about their characterization of Israeli actions in Hebron as being "collective punishment" as well as asking if they condemn the kidnapping of Israeli civilians.

Here was their answer:
Dear Sir/Madam,

International humanitarian law and human rights law applies to all civilians - Israeli and Palestinian.

Our statement makes clear that the abducted teenagers must be released - the abduction of civilians and the taking of hostages is prohibited by international law at all times (Article 34 of the Fourth Geneva Convention).

The statement also goes into detail on how Israel is breaking Article 33 of the Fourth Geneva Convention by carrying out collective punishment, including:

  • - the imposition of a complete closure on the Hebron district of the West Bank, which prevents some 680,000 Palestinians from moving between villages and the city of Hebron, as well as within the city.
  • - thousands of residents of the Hebron district who have permits to work inside Israel or in Israeli settlements cannot reach their places of employment.
  • - residents of the Hebron district under the age of 50 have also been prevented from leaving the West Bank via the Allenby Crossing to Jordan.
  • - the Israel Prison Service has cancelled family visits for Palestinian prisoners and detainees.
  • - the Israeli authorities are also considering transferring Hamas officials or prisoners who are residents of the West Bank to the Gaza Strip. The Fourth Geneva Convention explicitly prohibits an occupying power from forcibly transferring or deporting people from an occupied territory.
  • - the Israeli authorities have also closed the Erez Crossing, the only crossing for people between the Gaza Strip and Israel, to the limited categories of people who have permits to use it, except for patients needing urgent medical assistance. The Kerem Shalom Crossing, the only entry point for goods, has also been closed except for the transfer of limited amounts of fuel.

Gordon Bennett

Supporter Care Team
Amnesty International UK

I asked a couple of lawyers to respond.

Anne Herzberg of NGO Monitor quoted the major text in the field, Yoram Dinstein's "The International Law of Belligerent Occupation." He writes:

363. The issue of collective penalties also came up before the Court, in the Shua case, in the setting of a prolonged night curfew imposed on the Gaza Strip for a cumulative period of two years."' The Court (per Justice G. Bach) conceded that, ordinarily, such a protracted curfew might appear to amount to an improper collective penalty; but it reached the conclusion that this was not so in the present instance, given the special circumstances of the intifada." The ruling was confirmed by the Court (per Justice I. Zamir) in the Sruzberg case.'

364. Evidently, a drawn-out night curfew seriously upsets the life of the civilian population in an occupied territory. The legality of a curfew therefore depends on its purpose in the concrete circumstances. The real aim of the military government, in imposing the measure, is liable to contravene the Geneva prohibition of collective penalties in an occupied territory." Yet, as long as a curfew is directly associated with the exigencies of a specific security situation, there is nothing legally wrong with it.

Another lawyer replied:
Since the best information Israel has indicates that the hostage-takers are members of a cell of the Hamas terrorist organization operating in Hebron and that the terrorists took their hostages to Hebron, it is obviously a vital security measure to restrict movement in and out of Hebron until the hostage-takers and their accomplices are apprehended and the hostages safely released from captivity. The measure is not intended as punishment, and Israel has explicitly and repeatedly said so. Amnesty International is claiming the power to read minds and insisting that it detects an evil intent in order to transform legitimate security measures into “punishment.” Or does Amnesty International have evidence to show that the measures are not related to apprehending terrorists or recovering the hostages?

There’s almost nothing to be found defining the prohibition.

In my opinion, collective punishment is criminal or quasi-criminal punishment of the innocent (e.g., convicting someone of the “crime” of being related to a war criminal), especially actions against civilians that would be war crimes in any event (like Nazis rounding up villagers and shooting them as punishment for someone else’s resistance). Here are the only two cases that appear in the ICRC manual on customary law: Nazis killing hundreds of civilians in response to partisan attack on German army; and a US officer who ordered the My Lai massacre (summary execution of Vietnamese civilians as reprisal for killings carried out by North Vietnamese combatants). The rest is opinions outside of legal proceedings, or prohibitions without definitions.

The ICRC manual section is entitled “Individual Criminal Responsibility and Collective Punishments.”

In all cases, the intent is key – if the measure is not intended as punishment/penalty/disciplinary measure but as something else (e.g., securing an area), it is not collective punishment.
This second lawyer also notes Amnesty's inconsistency on their fifth point (which has nothing to do with "collective punishment"):

Amnesty says that Israeli authorities are considering transferring Hamas officials or prisoners who are residents of the West Bank to the Gaza Strip, and that this would be forbidden since the Fourth Geneva Convention explicitly prohibits an occupying power from forcibly transferring or deporting people from an occupied territory.

However, Amnesty International also claims that Gaza is currently belligerently occupied by Israel. If that is the case, transferring Hamas officials who are residents of the West Bank to the Gaza Strip is simply a reassignment of residence of persons within occupied territory that is explicitly permitted by article 78 of the Geneva Convention. In any event, transfer to Gaza could not possibly be a "deportation" from occupied territory.

Is Amnesty International now finally admitting that the Gaza Strip is not belligerently occupied by Israel?
(h/t Mike)

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