|
|
Support HRW |
|
|
The treatment of the civilian residents of occupied south Lebanon by Israeli and Lebanese military and security forces is governed by international humanitarian law standards codified in the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (the Convention). The civilians in the occupied zone are protected persons under the convention.122 Israel, as the Occupying Power, bears ultimate responsibility both for its own actions and the actions of the South Lebanon Army (SLA) that affect the civilian population. Article 29 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, sets out the responsibilities of an occupying force, declaring that "The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents..." The officialcommentary by the International Committee of the Red Cross on article 29 explains why Israel cannot shirk responsibility for expulsions and other forcible transfers from the territory it occupies irrespective of whether such actions are undertaken by its own national forces or by its local auxiliaries:
The term "agent" must be understood as embracing everyone who is in the service of a Contracting Party...It included civil servants, judges, members of the armed forces, members of para-military police organizations, etc. (...)
The nationality of the agents does not affect the issue. That is of particular importance in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally recruited agents of the nationality of the occupied country.
The SLA, as an auxiliary force to a party to the conflict, is also obliged to respect the laws and customs of war, including those that protect the civilian population.
The convention categorically prohibits deportations, forcible transfers, collective punishment, intimidation and coercion, and forced military service in the armed forces of the Occupying Power or its auxiliary forces. Israel and the South Lebanon Army have violated these international standards with impunity. Unlawful deportation, forcible transfers, and forced conscription of protected persons are grave breaches of the convention.123
Deportations and Forcible Transfers
The expulsions described in this report violate the categorical prohibition of such actions in article 49 of the Convention:
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Deportation and forcible transfer are grave breaches of the laws and customs of war.
Collective punishment is a term used in international humanitarian law to describe any form of punitive sanctions and harassment, including but not limited to judicial penalties, that are imposed on families or other targeted groups for actions that they themselves did not personally commit.124 As the testimony presented in this report makes clear, individuals and families have been summarily expelled from the occupied zone as punishment for the known or suspected actions of others, most typically family members. Others have been denied the right to leave the occupied territory or have been detained, threatened, or tortured in retaliation for the actions or omissions of family members. This practice is a violation of article 33 of the Convention, which states in pertinent part:
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.
The intimidation and coercion of civilian residents of the occupied zone, particularly for the purpose of collecting information for the security and intelligence apparatus of either the SLA or Israel, is a violation of international humanitarian law. Article 31 of the Convention prohibits coercion:
No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.
International humanitarian law and international human rights law both absolutely prohibit torture. Article 32 of the Fourth Geneva Convention prohibits High Contracting Parties from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. Torture is specifically included in this category. Article 147 further specifies that "torture or inhuman treatment" is a grave breach of the Convention.
The prohibition against torture also appears in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), both of which Israel ratified in 1991. Both treaties prohibit torture under all circumstances, even during a state of war or other public emergency. Both treaties also require states to take effective legislative, administrative, or judicial measures to ensure that this prohibition is enforced. Article 1 of the CAT provides the authoritative definition of the term torture:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
It is accepted internationally that the SLA serves as Israel's auxiliary force in occupied south Lebanon, and that Israel finances its operations, provides it with military and other equipment, and pays the salaries of its personnel. The practice of forcing male residents of the occupied zone to serve in the SLA is in violation of the requirements of international humanitarian law. Article 51 of the Convention states in pertinent part:
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted .
Human Rights Watch does not have evidence that Israel as the occupying power has instructed the SLA to forcibly recruit Lebanese conscripts, including children. Nevertheless, it is Israel's responsibility as the occupying power to investigate this grave breach of the Geneva conventions and bring this practice by its auxiliary force to an immediate halt.
Conscription and Forced Conscription of Children
International law prohibits the recruitment of children under the age of fifteenor their participation in hostilities. The Convention on the Rights of the Child, which has been ratified by both Lebanon and Israel, requires states to "take all feasible measures to ensure that persons who have not attained theage of fifteen years do not take a direct part in hostilities. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have not attained the age of eighteen years, States Parties shall endeavor to give priority to those who areoldest." Article 77 (2,3) Protocol I to the Geneva Conventions sets forth the same requirements.125
An international effort is underway to raise the minimum age for recruitment andparticipation in armed conflict from age fifteen to eighteen through an optionalprotocol to the Convention on the Rights of the Child. The early conclusion ofsuch a protocol was recommended by the 1996 United Nations Study on the Impactof Armed Conflict on Children, and is supported by the International Committeeof the Red Cross and Red Crescent, UNICEF, the United Nations High Commissionerfor Human Rights, and a growing number of States, intergovernmental organizations, and non-governmental organizations.
International labor law protects children up to the age of eighteen from forcedrecruitment for use in armed conflicts. The ILO Convention Concerning theProhibition and Immediate Elimination of the Worst Forms of Child Laborprohibits "forced or compulsory recruitment of children for use in armedconflicts." (Article 3 (a)) Adopted June 17, 1999 by the International LaborConference, the convention has not yet entered into force.
It is Human Rights Watch's position that no one under the age of eighteen should be recruited (either voluntarily or involuntarily) into any armed forces, whether governmental or nongovernmental in nature.
.
122 Article 4 states in its pertinent part: "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." 123 Article 147.124 "The concept of collective punishment must be understood in the broadest sense: it covers not only legal sentences but sanctions and harassment of any sort, administrative, by police action or otherwise." International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, Martinus Nijhoff Publishers, 1987), p. 874.
125 "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." (Article 77 (2)) In recruiting persons between fifteen and eighteen years, parties must give priority to recruiting those who are oldest.