IV. APPLICABLE LAW
Human Rights Watch has identified an IDF practice of coercing civilians to assist IDF military operations. Such a practice involves serious violations of IHL. In one case documented here, IDF actions have amounted to hostage-taking, an act prohibited by IHL at all times and in any place whatsoever. Hostage-taking is a war crime.
Palestinians Civilians as "Protected Persons"
[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.13
This article is considered by the authoritative Commentary of the International Committee of the Red Cross (ICRC) as "the basis of the Convention, proclaiming as it does the principle on which the whole of `Geneva Law' is founded."14 It requires States to actively "take all precautions and measures in their power to prevent such acts and to assist the victims in times of need."15 The use of physical and moral coercion is also explicitly prohibited under Article 31 of the Convention. Article 31 forbids coercion for "any purpose or motive whatsoever." According to the ICRC Commentary:
The prohibition laid down in this Article is general in Character and applies to both physical and moral forms of coercion. It covers all cases, whether the pressure is direct or indirect, obvious or hidden (as for example a threat to subject other persons to severe measures, deprival or ration cards or of work). Furthermore, coercion is forbidden for any purpose or motive whatever.16
The Fourth Geneva Convention also prohibits collective punishment: "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited."17 As explained by the ICRC Commentary, Article 33 of the Geneva Convention prohibits "penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed."18 The destruction of a house belonging to the family member of an alleged offender, a long-held IDF policy, is a textbook example of a collective penalty.19
Successive Israeli governments have taken the position that the Fourth Geneva Convention does not apply to the West Bank and Gaza Strip and that Israel is not bound by the Convention, a treaty that it has signed and ratified. Instead, Israel takes the position that it will voluntarily abide by the "humanitarian provisions" of the Fourth Geneva Convention. The Convention's defining principle is the obligation to protect and respect civilians: nothing is more humanitarian.
Israel's interpretation is not supported by the Convention's language, nor is it accepted by the body charged with monitoring adherence to the Geneva Conventions, the International Committee of the Red Cross. The ICRC has consistently affirmed the application of the Fourth Geneva Convention in all its statements dealing with the Occupied Territories since Israel's occupation of the West Bank and Gaza Strip.20 On December 4, 2001, the Declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention reaffirmed the applicability of the Fourth Geneva Convention to the West Bank, Gaza Strip, and East Jerusalem.21
Prohibitions on the Use of Civilians to Favor Military Operations
Prohibitions against the forced involvement of civilians in military operations have been widely codified, including in Article 52 of Hague Regulations of 1907. For example, Article 51 of the Fourth Geneva Convention prevents a party from compelling civilians to serve in its armed or auxiliary forces. According to the ICRC Commentary, Article 51 forbids "all work involving Protected Persons in any form of participation in military operations." 24 The Commentary further explains that "[a]ny action on the part of the Occupying Power which had the effect of involving [civilians], directly or indirectly in the fighting and so preventing them from benefiting by special protection under the Convention must be regarded as unlawful."25
Israel is also a state party to the Convention on the Rights of the Child (CRC), the most widely-ratified international human rights treaty. Under article 38 (4) of the Convention, Israel's obligations under IHL are supplemented by the obligation to take active steps to ensure the protection of children in armed conflict: "In accordance with their obligations under IHL to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict." 27
An important element of this prohibition is the notion that a hostage is held, usually under explicit or implicit threat, to influence the actions of a third party. According to the ICRC Commentary, Article 34 of the Fourth Geneva Convention defines as hostages people "who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of his armed forces."29
Hostage-taking is forbidden under Article 3, common to the four Geneva Conventions of 1949, which regulates the conduct of parties to internal armed conflicts. It is also prohibited by Article 34 of the Fourth Geneva Convention, and is one of the acts defined as "grave breaches" in Article 147 of the Convention, making hostage-taking a war crime.
13 Geneva Convention IV, Article 27.
14 International Committee of the Red Cross, Commentary on the Geneva Conventions of 12 August 1949: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, p. 204 (Jean S. Pictet, ed., 1958) [hereinafter ICRC, Commentary IV].
16 ICRC, Commentary IV, p. 219-220.
17 Geneva Convention IV, Article 33.
18 ICRC, Commentary IV, p. 225.
19 "Such measures may take different forms, such as a curfew preventing the inhabitants from fulfilling their daily duties, punishment or detention of several members of a group or family for an alleged offense by one member, or the destruction of the house belonging to the family of an alleged offender." From Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflict, p. 249.
20 For previous Human Rights Watch discussion of this issue, see Human Rights Watch, Center of the Storm, p. 17-37.
21 Declaration from the Conference of High Contracting Parties to the Fourth Geneva Convention, December 4, 2001. http://www.eda.admin.ch/eda/e/home/foreign/hupol/4gc.html.
22 See ICRC, Commentary on Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), p. 615 (Y. Sandoz et al., eds., 1987) [hereinafter ICRC, Commentary on Protocol I].
23 Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (New York: Oxford University Press New York, 1995), p. 218.
24 ICRC Commentary IV, p. 296.
26 For example, as Article 77 of Additional Protocol I specifies, "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." Israel is not a party to Additional Protocol I.
27 U.N. Convention on the Rights of the Child, opened for signature Jan. 26, 1990, G.A. Res. 44/25, U.N. GAOR 61st plen. mtg. at 166, U.N. Doc. A/44/736 (1989), reprinted in 28 I.L.M. 1448 (1989) with corrections at 29 I.L.M. 1340 (1990) (entered into force Sept. 2, 1990).
28 Human Rights Watch, "Israel's Proposed Imprisonment of Combatants Not Entitled to Prisoner of War Status Law," background briefing, June 2000.
29 ICRC, Commentary IV, p. 230.