In a meeting with Human Rights Watch representatives on November 8, 2000, Lt. Col. Pnina Sharvit Baruch, deputy head of the International Law division of the IDF, explained the IDF's legal position on the current conflict. The IDF views the current conflict as different from the first intifada, Baruch said, because there is now a regulated and armed Palestinian force in the occupied territories and "the violence itself is of a different nature, it is not just a civilian uprising. Now, we are being fired at daily, both against military and [Israeli] civilians."7 At the time of the November meeting with Human Rights Watch, the IDF did not consider the situation to be a "state of war" but rather defined the situation as a state of "armed conflict," although Lt. Col. Baruch admitted that the IDF was still determining how to classify the conflict, which it considered to be "somewhere in the middle." However, in testimony before the Israeli Knesset in February, IDF Chief of the General Staff Lt. General Shaul Mofaz stated that the IDF was in a "state of war in every way."8
The argument by Israeli authorities that the current conflict in the West Bank and Gaza Strip falls "somewhere in the middle" serves to obfuscate Israel's legal obligations in the conflict. In effect, Israeli authorities have tried to place themselves in a situation in which they are free to choose applicable provisions from two different legal regimes-the first applying to human rights and policing standards during situations of civil unrest, and the second applying to armed conflicts-without being bound by the obligations of either regime, in an effort to exploit gaps or limitations in the protection standards of both regimes. No such "somewhere in the middle" regime exists under international law. An accurate analysis of the applicable legal regime clearly shows that Israel has concrete legal obligations under both regimes. Whenever the legal regime applying to a particular situation has not been clearly identified, it remains a foremost principle that the legal regime favored should enhance protection of the civilian population, not diminish it.
Two legal regimes are directly relevant to Israel's obligations in the Occupied West Bank and the Gaza Strip. The first legal regime is that of International Humanitarian Law (particularly the Fourth Geneva Convention), which applies to situations of belligerent occupation as well as situations where hostilities rise to the level of international armed conflict. However, the application of international humanitarian law (IHL, as codified in the Geneva Conventions, its protocols, and other sources) does not preempt the application of a separate legal regime, the human rights regime, particularly the non-derogable rights such as the right to life. On the contrary, in situations of this complexity, both legal regimes complement and reinforce each other.
When considering which legal standards apply to a particular situation, it is incumbent to distinguish between a legitimate military response in situations of armed confrontation, such as the fire exchanges amounting to hostilities between Palestinian gunmen and Israeli forces, and a policing response in the more common situations of civilian protests, which include the almost daily rock-throwing clashes. Declaring a state of "armed conflict" does not negate Israel's obligation to continue to apply appropriate policing standards to civilian protests, even if some of these civilian protests turn violent and require dispersal by law enforcement officials.
The U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials9 and the U.N. Code of Conduct for Law Enforcement Officials10 provide international standards governing the use of force in law enforcement, including during the policing of violent unlawful assemblies. While these principles are not legally binding, they provide authoritative guidance and reflect a high level of consensus by the international community about the standards that states are required to apply on the use of force and firearms by law enforcement officials. Principle 9 of the Basic Principles states:
Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.11
The Basic Principles provide that law enforcement officials12 shall "as far as possible, apply non-violent means before resorting to the use of force and firearms." (Principle 4). The Basic Principles also call for proportionality in the amount of force used (Principle 5), for the adoption of reporting requirements where force or the use of firearms lead to injury or death (Principle 6), and for governments to ensure that "arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law" (Principle 7).
The U.N. Code of Conduct for Law Enforcement Officials provides similar international human rights standards for law enforcement. Article 3 of the Code requires that "[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty." The official commentary accompanying Article 3 sets forth detailed standards applying to the use of firearms, arguing for restraint in their use ("The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children."), and recognizing the principle of proportionality in the use of firearms ("In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved").
Under International Humanitarian Law, Israel is considered the "Occupying Power" in the "Occupied Territories" of the West Bank and the Gaza Strip captured during the 1967 war. Its conduct as an occupying power is governed by two major international instruments that relate to the treatment of civilians during war and in occupied territories: the 1907 Hague Regulations annexed to the Convention (IV) Respecting the Laws and Customs of War on Land, and the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Israel ratified the Geneva Conventions on July 6, 1951.13 Israel has not signed or ratified the 1907 Hague Regulations, but the Israeli High Court has found that the 1907 Hague Regulations are part of customary international law, and thus binding on all states, including those not party to the treaty.14
Israeli governments have commonly taken the position that Israel is not bound by the Fourth Geneva Convention dealing with the responsibilities of occupying powers, because Jordanian and Egyptian control over the West Bank and Gaza prior to Israel's occupation in 1967 had been seen by the world community as illegitimate. Therefore, Israel argues, "these territories were not, prior to the occupation, under the sovereignty of any state, and could not, therefore, be considered `occupied territory' once Israel seized control."15 Instead, Israel takes the position that it will voluntarily abide by the "humanitarian provisions" of the Fourth Geneva Convention.
Israel's position on the applicability of the Fourth Geneva Convention is not supported by the language of the Convention. The Fourth Geneva Convention applies to all civilians in a war or under occupation, defined as "Protected Persons" in Article 4 of the Convention, which reads:
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.16
The International Committee of the Red Cross (ICRC), the international body charged with monitoring and promoting adherence to the Geneva Conventions, takes the position that the Fourth Geneva Convention fully applies to Israel's conduct in the West Bank and Gaza Strip.17 It is also the view of virtually the entire international community excepting Israel, as reflected by numerous U.N. General Assembly and Security Council resolutions,18 as well as resolutions of other regional bodies such as the European Union,19 and the position of most of the legal scholars who have taken a stance on the issue.20 Israel stands alone in its interpretation that the Fourth Geneva Convention and the Hague Regulations do not apply to the West Bank and Gaza Strip.
In July 1999, the High Contracting Parties to the Fourth Geneva Convention convened a conference in Geneva to discuss issues related to the application and enforcement of the Fourth Geneva Convention in the West Bank and Gaza Strip. Israel and the United States boycotted the conference.21 The statement of common understanding that was adopted by the participating High Contracting Parties "reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem," and "the need for full respect for the provisions of the said Convention in that Territory."22 Common Article 1 of the Geneva Conventions requires High Contracting Parties "to respect and to ensure respect for the present Convention in all circumstances," a requirement that includes the duty to endeavor to bring another High Contracting Party to respect the Geneva Conventions when it is responsible for breaches.23
As in earlier times where the IDF took the position that it was in a state of "armed conflict," the IDF is advancing the position that it does not have any obligation to investigate killings or woundings by the IDF during the current conflict. In a January meeting with Amnesty International representatives, Colonel Daniel Reisner, Head of the Legal Department of the IDF, stated that "no army carries out investigations in warfare, up to then every question is investigated."24 Similar statements were made to the Israeli human rights group B'Tselem, and at times the IDF has advanced the argument that it cannot carry out investigations into IDF shootings and killings because of technical difficulties, particularly the inability of Israeli investigators to enter Palestinian-controlled Area "A" territories.25 When the United States Department of State provided the Israeli government with a list of slain Palestinians and asked for explanations of each case, the Israeli government refused to provide the information, arguing that the killings must be seen in the context of armed conflict and not as a human rights issue.26
International standards require a "thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances."27 In its meeting with Human Rights Watch, the IDF explained that all incidents of the use of lethal force are internally reviewed by the commander of the soldiers involved, and that "due to the situation that exists now, only when there is reason to believe that there is a criminal, extreme case, there would of course be a criminal investigation."28 The internal review by the commander of the soldiers involved, whose own career may be negatively affected and who may face disciplinary proceedings himself if soldiers under his command are implicated in wrongdoing, cannot be considered impartial.
The IDF's formal position that it will not investigate killings by its soldiers during the current "state of armed conflict" is not new. The IDF also refused to investigate the 1996 killings of forty-seven Palestinian civilians and thirteen members of the Palestinian security forces during clashes following the controversial opening of an ancient tunnel near Jerusalem's Al-Aqsa Mosque compound,29 stating that the events were designated as "combat incidents. Therefore, MPI [the Department of Military Police Investigations] will not investigate incidents in which IDF soldiers are involved. However, in cases where there is proof of offenses by soldiers in non-combat situations, MPI will be ordered to investigate."30 The IDF similarly refused to investigate its soldiers' conduct in the May 2000 Naqba demonstrations, commemorating the 52nd anniversary of the 1948 Arab-Israeli war that led to the establishment of the Jewish state and caused the displacement of many Palestinian communities,31 in which six Palestinian civilians and two Palestinian security force members were killed.32
Despite its formal position that the IDF will only investigate "criminal, extreme cases" of killings occurring in the course of "armed conflict," the IDF has opened investigations into some cases of suspicious shootings, as illustrated in this report. In a number of these cases, particularly the cases of Muhammad al-Dirra33 and Jad Allah al-Jabari, it appears that intense press attention positively influenced the IDF's decision to open an investigation. However, even where investigations into unlawful use of lethal force have been opened, the IDF has failed to contact and interview crucial witnesses to the shootings, or even inform the relatives of shooting victims about the status of the investigation. For example, the Associated Press cameraman who directly witnessed the shooting of Jad Allah al-Jabari was never contacted by the IDF, even though the IDF has stated that an investigation has been opened and that the soldiers have been reprimanded for providing false accounts of the incident. Similarly, none of the relatives or eyewitnesses to the killing of Yusif Abu ``Awad have been contacted by the IDF, even though it appears an investigation has been opened. All of these witnesses expressed a willingness to Human Rights Watch to cooperate with an IDF investigation.
The IDF's investigative practices fall short of accepted international standards, particularly the right of the family of the deceased to be informed and have access to the investigation:
Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as to all information relevant to the investigation and shall be entitled to present evidence.34
International standards also require the publication of a report "within a reasonable period of time" on the scope and findings of the investigation, as well as bringing to justice persons accused of participation in unlawful killings.35
The IDF position that it is not required to investigate killings that occur during the course of "armed conflict" is inconsistent with international law standards. Both international humanitarian law and international human rights law require Israel to investigate credible reports that its forces have committed unlawful killings.
Under international humanitarian law, Israel is obliged "to provide effective penal sanctions for persons committing, or ordering to be committed" grave breaches of the Geneva Conventions, which includes "willful killing," and to "bring such persons ... before its own courts."36 In addition, and most relevant to the cases of unlawful killings discussed in this report, the Geneva Conventions require state parties to "take measures necessary for the suppression of all acts contrary to the provisions of the present Convention,"37 a provision which is interpreted in the authoritative commentaries of the International Committee of the Red Cross as requiring Contracting Parties to "institute judicial or disciplinary punishment for breaches of the Convention."38 Unlawful killings are a form of "violence to life and person" specifically prohibited by the provisions of the Geneva Conventions.
The right to life, protected by all international human rights instruments, is a non-derogable human right and remains in full force even during times of armed conflict.39 Israel is allowed to use lethal force against combatants within the framework of the Geneva Conventions, but has to take the necessary safeguards to protect the civilian population from the arbitrary or unlawful use of lethal force. The Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions state:
There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances.40
The IDF's position that they do not need to investigate alleged unlawful killings, even when presented with significant evidence by relatives and human rights groups that such killings have taken place, seriously calls into question whether the IDF can conduct "a thorough, prompt and impartial investigation" of alleged unlawful killings. Such concerns are heightened by the sometimes blanket statements made by IDF spokespersons about the legitimate nature of IDF fire, such as an October 2, 2000, announcement by the IDF spokesperson that "Every incident in which IDF soldiers used measures to disperse demonstrations or live ammunition was a precise reaction toward sources of fire and toward violent elements threatening to cause harm to human lives."41 Such apparent prejudgment by the IDF, and its unwillingness to ensure that potentially unlawful killings are subject to impartial inquiry, strongly argue for the establishment of an independent commission of inquiry, as provided for in the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions:
In cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure.42
In addition to the unlawful killings of Palestinian civilians, Israeli forces are also implicated in carrying out a number of targeted assassinations of alleged Palestinian militants in the Hebron area. The assassinations form part of a broader policy of "liquidations" carried out by Israeli forces throughout the West Bank and Gaza against Palestinian militants whom Israel suspects of planning or carrying out attacks on Israeli security forces and civilians. Israeli authorities have publicly acknowledged responsibility for some of the assassinations carried out under this policy, although they have remained silent on other suspected "liquidations."43 At least ten Palestinians suspected by Israel of involvement in attacks against Israeli forces or civilians, and six bystanders, are believed to have died pursuant to the "liquidation" policy, although the actual number may be higher.
The head of the IDF's International Law Branch, Col. Daniel Reisner, publicly announced the existence of a "liquidation" policy following the November 9, 2000, killing of Hussein Abayat, a Fatah activist accused by the Israelis of involvement in attacks in the Bethlehem area. On November 15, 2000, Col. Reisner stated: "In the current situation, people who attack us have been identified by us as combatants. As a result we view them as legitimate targets. That is what I mean by targeting."44 Israeli authorities continued with the "liquidation" policy despite international protests. On February 14, 2001, following the death of nine Israelis in Tel Aviv when a Palestinian bus driver drove into a group of people, Deputy Defense Minister Ephraim Sneh reaffirmed the policy, stating: "We will continue our policy of liquidating those who plan or carry out attacks, and no one can give us lessons in morality because we have unfortunately 100 years of fighting terrorism."45
Extrajudicial executions are strictly prohibited under international law. Israeli officials argue that the individuals designated for "liquidation" are legitimate military targets because of their involvement in attacks against Israeli military personnel and civilians, but they have not made public any evidence to substantiate this claim. Decisions to kill particular individuals have not been subject to any transparent civilian or military review, raising concerns that civilians, as well as members of the Palestinian security services who have played no direct role in attacks against Israeli civilians or military personnel, may be among those targeted. In several cases, the "liquidation" killings have taken place in or near areas under Israeli control, where it may have been possible to arrest the suspects.
The most fundamental principle of the laws of war requires that combatants be distinguished from noncombatants, and that military objectives be distinguished from protected property or protected places. Parties to a conflict must direct their operations only against military objectives (including combatants).46
Under Protocol I, Article 51(4), indiscriminate attacks are prohibited. Israel is not a party to Protocol I, but the provisions prohibiting indiscriminate warfare are considered to be norms of customary international law, binding on all parties to a conflict, regardless of whether it is an international or internal armed conflict.47 Indiscriminate attacks are "those which are not directed against a military objective," "those which employ a method or means of combat which cannot be directed at a specific military objective," or "those which employ a method or means of combat the effects of which cannot be limited as required by the Protocol," "and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction."48 Military objectives are defined as "those objects which by their nature, location, purpose or use make an effective contribution to military action."49 Among the types of attack specifically prohibited as indiscriminate is "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."50 Also prohibited are "attacks against the civilian population or civilians by way of reprisals."51
The term "means" of combat refers generally to the weapons used; the term "method" to the way in which such weapons are used. Casualties that are a consequence of accidents, as in situations in which civilians are concealed within military installations, may be considered incidental to an attack on a military objective-so called "collateral damage"-but care must still have been shown to identify the presence of civilians. Article 57 of Protocol I sets out the precautions required, among them to "do everything feasible to verify that the objectives to be attacked are neither civilians or civilian objects," to "take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects," and to refrain from deciding to launch any attack "which may be expected to cause" such deaths, injuries or damage "which would be excessive in relation to the concrete and direct military advantage anticipated."52 In its authoritative Commentary on the protocols, the ICRC is clear on what is meant by "feasible" in Article 57: "What is required ... is to take the necessary identification measures in good time to spare the population as far as possible."53
The principle of proportionality places a duty on combatants to choose means of attack that avoid or minimize damage to civilians. In particular, the attacker should refrain from launching an attack if the expected civilian casualties would outweigh the importance of the military objective.54 Protocol I, Article 57 ("Precautions in attack") requires those who plan and/or execute an attack to cancel or desist from the attack in such circumstances.
The ICRC Commentary on Article 57 of Protocol I sets out a series of factors that must be taken into account in applying the principle of proportionality to the incidental effects attacks may have on civilian persons and objects:
The danger incurred by the civilian population and civilian objects depends on various factors: their location (possibly within or in the vicinity of a military objective), the terrain (landslides, floods etc.), accuracy of the weapons used (greater or lesser dispersion, depending on the trajectory, the range, the ammunition used etc.), technical skill of the combatants (random dropping of bombs when unable to hit the intended target).55
As expressed in the ICRC Commentary, "the golden rule to be followed" when making determinations about the proportionality of an attack is "the duty to spare civilians and civilian objects in the conduct of military operations."56
This report deals extensively with attacks by Israeli settlers against Palestinian civilians, and finds that the IDF and other Israeli authorities have consistently failed to protect Palestinian civilians from attack. Palestinian and Israeli human rights organizations have reached similar conclusions about the failure of the Israeli authorities to protect Palestinian civilians from attacks by settlers, as well as the failure by Israeli authorities to investigate and prosecute crimes committed by settlers against Palestinians.57 Official Israeli commissions, including the 1982 Karp Committee and the 1994 Shamgar Commission appointed to investigate the Hebron massacre by Baruch Goldstein, also concluded that the Israeli authorities, particularly the police, have consistently failed in their obligation to investigate and prosecute crimes committed by settlers against Palestinians.
The Palestinian population of the occupied West Bank and Gaza Strip are "Protected Persons" under the Fourth Geneva Convention, and are entitled to extensive protections under the law of belligerent occupation. The Fourth Geneva Convention requires that "Protected Persons" be protected against acts of violence:
Protected 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.58
This article, considered by the authoritative ICRC Commentary as "the basis of the [Geneva] Convention, proclaiming as it does the principles on which the whole of `Geneva Law' is founded," "requires States to take all precautions and measures in their power to prevent such acts and to assist the victims in case of need."59 Israel, as the occupying power, is responsible not only for the actions of its own security forces, but also for abuses committed by its own nationals, including Israeli settlers, if it fails to exercise "the requisite diligence and attention in preventing the act contrary to the Convention and in tracking down, arresting, and trying the guilty party."60
In 1998, following repeated findings that the responsible law agencies in the West Bank and Gaza Strip were not consistently enforcing the law when dealing with Israeli settlers, the Israeli government adopted new regulations designed to remedy this problem. The new regulations gave primary responsibility for law enforcement vis-à-vis settlers to the Israeli police, but required "in the event in which there is no prior information, if the IDF reaches the scene first, it will handle law enforcement and public order until the police arrive, at which time the police will take over."61 This responsibility was acknowledged in a March 20, 2001, IDF response to a report by B'Tselem:
In accordance with the division of responsibilities between the various security organizations, the responsibility for enforcement of law and order on Israelis, wherever they may be, rests upon the Israel police.
However, in cases when the Israeli police is not present, or if the police is unable to realize its aforementioned responsibility, IDF soldiers are instructed to act to prevent crimes. The soldiers are to inform the police of the incident as soon as possible in order to allow the police to continue treatment of the incident.62
In practice, as demonstrated in this report, both the IDF and the Israeli police consistently fail to meet their Geneva Convention obligation to exercise "the requisite diligence and attention" to prevent settler attacks, and "in tracking down, arresting, and trying the guilty party." IDF soldiers frequently refuse to prevent or stop settler attacks happening right in front of them, even when requested to intervene by the victims. In numerous cases, the IDF has only intervened to protect Jewish settlers from counterattack by Palestinians and in all of the cases documented in this report, the IDF allowed settlers who committed criminal attacks to leave the scene, thereby jeopardizing the possibility of a successful investigation of the incident. The IDF's bias in favor of protecting settlers is openly acknowledged by its leadership. In a May 2000 interview, Hebron commander Noam Tivon stated:
Let there be no mistake about it. I am not from the U.N. I am from the Israeli Defense Force. I did not come here to seek people to drink tea with, but first of all to ensure the security of the Jewish settlers.63
The Israeli police have also failed in their duties, often refusing to take statements from Palestinian victims at the crime scene, and making themselves inaccessible to many Palestinians by locating their offices in settlements which often cannot be entered by Palestinians during the current conflict. Not surprisingly, almost all attacks by settlers documented in this report have gone unpunished.
The lack of accountability for abuses committed by settlers is exacerbated by the discriminatory dual legal regime applied by Israel in the West Bank and Gaza Strip. Palestinians from the West Bank and Gaza Strip are tried under Israeli military law. Israeli settlers, however, are subject to Israeli law, and are entitled to greater protections in terms of limits on pretrial detention, their ability to meet with legal representatives, the defenses available to them, maximum sentences, and early release from prison.64 There is a notable disparity-universally in favor of the Israeli settler suspect-between the treatment afforded at all phases of the criminal justice system, including the decision to open and complete an investigation, the charges brought against suspects, the number of acquittals, the sentences handed out, and decisions to grant an earlier release.65
The Fourth Geneva Convention specifically 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."66 As explained in the authoritative commentary of the ICRC: "This paragraph then lays a prohibition on collective penalties ... 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."67 The Handbook of Humanitarian Law in Armed Conflict, a respected interpretive guide to international humanitarian law, interprets the prohibition on collective punishment as follows:
Collective penalties and all measures of intimidation and terrorism carried out by the occupying power have only one purpose: to make the population of the occupied territory submissive. 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. Such acts are prohibited, without exception, by Article 33 [of the Fourth Geneva Convention].68
Israel's closures, blockades, and curfews also affect other rights accorded protected persons under the Fourth Geneva Convention. Article 50 requires Israel to "facilitate the proper working of all institutions devoted to the care and education of children;" Article 53 prohibits "any destruction by the Occupying Power of real or personal property ... except where such destruction is rendered absolutely necessary by military operations;" Article 55 requires Israel to ensure "the food and medical supplies of the population;" and Article 56 requires that "medical personnel of all categories shall be allowed to carry out their duties."
Not every restriction or act of closure imposed by the Israeli authorities amounts to collective punishment. As an occupying power, Israel is entitled to impose some restrictions on the rights of the resident population if military necessity so demands. In order to determine whether a pattern of closures, blockades, and curfews amounts to collective punishment, account must be taken of the timing, duration, and extent of the measures imposed, the reasons invoked by the occupying power for the restrictive measures, the proportionality of those measures to the reasons invoked, and the effect of the measures on the population affected.
The International Committee of the Red Cross, the international body charged with monitoring and promoting adherence to the Geneva Conventions, has discussed Israel's obligations in a November 2000 public statement:
As an Occupying Power, Israel may restrict the freedom of movement of the resident population, but only when and in so far as military necessity so dictates. Restrictions on movement by means of curfews or the sealing-off of areas may in no circumstances amount to collective penalties, nor should they severely hinder the daily life of the civilian population or have dire economic consequences. Moreover, the Occupying Power has the duty to ensure an adequate level of health care, including free access to hospitals and medical services, and may not obstruct the circulation of food supplies. All institutions devoted to the care and education of children must be allowed to function normally. Religious customs must be respected, which implies access to places of worship to the fullest extent possible.69
In February 2001, the ICRC asserted that Israel's policy of closures and blockades was in violation of its Fourth Geneva Convention obligations:
The ICRC views the policy of isolating whole villages for an extended period of time as contrary to International Humanitarian Law (IHL) particularly with respect to those aspects of IHL which protect civilians in times of occupation. Indeed, stringent closures frequently lead to breaches of Article 55 (free passage of medical assistance and foodstuffs), Article 33 (prohibition on collective punishments), Article 50 (children and education), Article 56 (movement of medical transportation and public health facilities and Article 72 (access to lawyers for persons charged) of the Fourth Geneva Convention.
While accepting that the State of Israel has legitimate security concerns, the ICRC stresses that measures taken to address these concerns must be in accordance with International Humanitarian Law. Furthermore, these security measures must allow for a quick return to normal civilian life. This, in essence, is the meaning of the fourth Geneva Convention which is applicable to the Occupied Territories.70
Israel's policy of encouraging, financing, establishing, and expanding Israeli settlements in the occupied territories of the West Bank and Gaza Strip runs contrary to two main principles of international humanitarian law: the prohibition on the transfer of civilians from the occupying power's territory into the occupied territory, and the prohibition on creating permanent changes in the occupied territory that are not for the benefit of the occupied population.
Article 49(6) of the Fourth Geneva Convention states that "[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."71 According to the authoritative commentaries of the ICRC, this clause was adopted expressly to prohibit the transfer of nationals of an occupying power into the occupied territory:
It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" ... do not refer to the movement of protected persons but to that of nationals of the Occupying Power.72
Some Israeli scholars have asserted that Article 49 only prohibits government policies designed to bring about "basic demographic change in the occupied territory's population structure," but may allow "voluntary settlement, little by little, of civilians of the occupying power in the occupied territory ... if it is neither done by the government of the Occupying Power nor in an official manner."73 Such an argument allowing for "voluntary settlement" is inconsistent with the aims of the Fourth Geneva Convention, which serves to protect the civilian population of the occupied territories from "colonization" and other similar policies that are detrimental to their well-being.74 It also ignores the fact that successive Israeli governments have given active support to the settlement policy since 1967. In its comprehensive 1997 report on the legality of Israeli settlement policies, the Israeli human rights organization B'Tselem addressed the active government role played by Israel in promoting and sustaining the settlement policy:
1. The declared purpose of the settlers, like that of Israeli governments that establish the settlements, was and continues to be to create "basic demographic change in the population structure," whether throughout the occupied territories (the Likud policy) or in portions of the occupied territories (the Ma'arach [coalition of the Labor and MAPAM parties] policy). Such a change was actually accomplished, at least in those areas in which there is congested Israeli settlement.
2. The Israeli government initiated most of the Jewish settlement in the Occupied Territories. All of the relevant ministries and authorities assisted by expropriating land, planning, implementation, and financing. The State Comptroller's Annual Report of 1983 enumerates 125 settlements that the Ministerial Committee for Settlement Matters had decided to establish. The various Israeli governments encouraged and continue to encourage Israeli civilians to move to the Occupied Territories by providing benefits, like grants and loans under favorable terms.
Even where the settlers, rather than the government, established the settlements (as in the cases of Kedumim, Shilo, and Ofra), the government acted retroactively to turn them into permanent settlements. To achieve this, the government assisted with planning, infrastructure, establishment of public buildings and institutions, expropriation of land to expand the settlements, and by encouraging other Israeli civilians to live there.75
B'Tselem has also conducted detailed case studies demonstrating the extensive Israeli government role in the establishment of the settlements, as well as the widespread human rights violations committed during the establishment of settlements, such as its 1999 report on the abuses committed during the establishment and expansion of the West Bank settlement of Ma'aleh Adumim.76
The second principle of international humanitarian law violated by Israel's settlement policy is the prohibition on creating permanent changes in an occupied territory that are not intended to benefit the protected population of the occupied territory. Under the law of occupation, the occupying power is considered to have only temporary, administrative rights over the occupied territory.77 The occupying power has the right to create changes in the occupied territory if there is a military necessity for such changes, or if the changes are made for the benefit of the protected population, such as in the case of the construction of roads for the use of the local protected population. It is clear, however, that the Israeli settlement policy in the Hebron area does not benefit the local, protected population78 and is widely considered to be detrimental to the interest of the local, protected population. The security rationale that Israel has generally advanced to justify the establishment of the settlements has also been challenged by many, including former Israeli generals and the late Prime Minister Yitzak Rabin, who argued that the settlements added nothing to Israeli security, but rather were a burden on Israel's army.79
As with the position that the Fourth Geneva Convention and other international humanitarian law instruments apply to the Occupied Territories of the West Bank and Gaza Strip, there is widespread international support for the position that the Israeli settlement policy violates international humanitarian law. In a November 2000 statement, the ICRC, which is charged with monitoring and promoting adherence to the Geneva Conventions, recognized that the presence of Israeli settlements in the West Bank "is contrary to the Fourth Geneva Convention."80 Numerous resolutions of the U.N. Security Council and General Assembly, as well as those from various regional bodies such as the European Union, have also endorsed the position that Israel's settlement policy is contrary to international humanitarian law.81
Israel's settlements in the West Bank and Gaza were established contrary to international humanitarian law. However, the settlements are populated by civilians, including children, who are entitled to the civilian protections contained in the Geneva Conventions. The illegal status under international humanitarian law of the settlements does not negate the rights of the civilians populating those settlements: the fact that a person lives in an illegal settlement does not make him or her a legitimate military target, and under international humanitarian law, intentional attacks on civilians are prohibited under all circumstances. Israeli civilians living in the settlements-so long as they do not take up arms and take an active part in the conflict-are considered noncombatants, and violence to their "life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," "shall remain prohibited at any time and in any place whatsoever."82
While Israeli citizens living in settlements in the West Bank and Gaza benefit from the general protections afforded to non-combatants, they are not entitled to the additional protections afforded to "Protected Persons" under the Fourth Geneva Convention. "Protected Persons" under the Fourth Geneva Convention are defined as inter alia persons "in the hands of a Party to the conflict or Occupying Power of which they are not nationals." Since Israeli settlers are Israeli citizens, they do not meet this requirement.
The protections accorded to civilians living in the settlements are compromised by the presence of many armed settlers among them, and the role some of these settlers play in confrontations around the settlements. When individual settlers take an active part in armed conflict, as opposed to acting in legitimate self-defense, they lose their civilian protections and become legitimate military targets, just as Palestinian militants who take an active part in armed conflict become legitimate military targets. The active and often abusive role played by some armed settlers, as documented in this report, jeopardizes the civilian population of the settlements because, in essence, it places potentially legitimate military targets amidst the civilian population of the settlements.83 However, the presence of armed settlers who may be defined as combatants among the larger settler population does not negate the requirement that Palestinian combatants distinguish between military and civilian targets, desist from attacking civilians, and take all feasible precautions to avoid harm to civilians.
12 The Basic Principles define "law enforcement officials" to include "all officers of the law, whether appointed or elected, who exercise police powers, especially the power of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services." Basic Principles, "Note".
15 B'Tselem, "Israeli Settlement in the Occupied Territories as a Violation of Human Rights: Legal and Conceptual Aspects," March 1997, p. 9 (paraphrasing the 1971 position of then-Attorney General of Israel, Meir Shamgar).
17 The ICRC has consistently affirmed the application of the Fourth Geneva Convention in all of its statements dealing with the Occupied Territories since Israel's 1967 occupation of the West Bank and Gaza.
18 See, for example, Security Council Resolutions 465 (1980), 452 (1979), and 446 (1979) (all "Affirming once more that the Fourth Geneva Convention ... is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem"); Statement by the President of the Security Council, July 13, 1998, S/PRST/1998/21, Statement by the President of the Security Council, November 11, 1976, S/12233; General Assembly Resolutions ES-10/6 (1999), ES-10/5 (1998), 53/55 (1998), ES-10/4 (1997), ES-10/3 (1997), ES-10/2 (1997), 52/66 (1997), 51/223 (1997), 51/133 (1996), 47/172 (1992); U.N. Commission on Human Rights resolutions 2000/6 (E/CN.4/RES/2000/6), 2000/8 (E/CN.4/RES/2000/8), 1999/7 (E/CN.4/RES/1999/7); 1999/5 (E/CN.4/RES/2000/5), 1998/3 (E/CN.4/RES/1998/3).
19 See, for example, Statement by Ambassador Johan Molander, Head of the Delegation of Sweden, on Behalf of the European Union, 57th Session of the Commission on Human Rights, Agenda Item 8. ("The European Union reaffirms once more its position that the fourth Geneva Convention ... is fully applicable to the Palestinian occupied territories, including East Jerusalem, and constitutes binding international humanitarian law.").
20 See Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict (Oxford: Oxford University Press, 1995, p. 244 ("[T]he Israeli government later took the view that [the Fourth Geneva Convention was not applicable since, inter alia, the international status of Western Jordan [sic.] and Gaza was not clear. ... This reasoning is not acceptable since denying the existence of conditions for application of GC IV it relies upon a possible controversy regarding the legal status of that territory. The purpose of the law of belligerent occupation is to ensure protection for persons and objects no longer under the control of their own authorities but of a foreign power, as a result of war. There is no doubt that, from the viewpoint of the inhabitants of Western Jordan and the Gaza Strip, Israel is a foreign power. Furthermore, GC IV regulates only humanitarian issues resulting from the fact of occupation for the inhabitants of occupied territories. The legal fate of the territories is a question which must be kept distinct from the humanitarian purpose of Geneva Law."); see also Emma Playfair (ed.), International Law and the Administration of Occupied Territories (Oxford: Claredon Press, 1992) (including articles by international law experts Adam Roberts, Allain Pellet, Richard Falk and Burns Weston, Christopher Greenwood, and Antonio Cassese supporting the view that the Fourth Geneva Convention applies to the West Bank and Gaza Strip).
21 The U.N. General Assembly resolution calling for the meeting of the High Contracting Parties was adopted by a vote of 115 in favor with two (Israel and United States) against and five abstentions. 103 High Contracting Parties attended the July 15 meeting. See United Nations, "Assembly Calls for Parties to Fourth Geneva Convention to Meet on Measures to Enforce its Application in Occupied Palestinian Territory," Press Release GA/9544 (February 9, 1999); U.N. General Assembly Resolution ES-10/6 of February 9, 1999.
The use in all four Conventions of the words `and to ensure respect for' was, however, deliberate: they were intended to emphasize the responsibility of the Contracting Parties....It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.
ICRC, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958), p. 16.
27 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the U.N. Economic and Social Council on May 24, 1989 in resolution 1989/65 and endorsed by the U.N. General Assembly on December 15, 1989 in resolution 44/162, Principle 9.
33 The case of Muhammad al-Dirra is discussed in the Human Rights Watch report, "Investigation Into Unlawful Use of Force in the West Bank, Gaza Strip, and Northern Israel, October 4 through October 11," A Human Rights Watch Short Report, Vol. 12 No. 3(E), November 2000.
40 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the U.N. Economic and Social Council on May 24, 1989 in resolution 1989/65 and endorsed by the U.N. General Assembly on December 15, 1989 in resolution 44/162, Principle 9.
43 See Human Rights Watch letter to Prime Minister Ehud Barak, "End Liquidations," January 19, 2001; Human Rights Watch release, "Israel: End `Liquidations' of Palestinian Suspects," January 29, 2001. See also, Amnesty International, Israel and the Occupied Territories: State Assassinations and Other Unlawful Killings (London: Amnesty International, February 2001).
47 See Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict, p. 120 ("The general prohibition against indiscriminate warfare applies independently of Arts. 48 and 51 [of Protocol I]. The relevant provisions of the Additional Protocols merely codify pre-existing customary law, because the principle of distinction belongs to the oldest fundamental maxims of established customary rules of humanitarian law. It is also virtually impossible to distinguish between international and noninternational armed conflict in this respect.... ")
57 Palestinian Human Rights Monitoring Group, "Criminal Negligence?: Settler Violence and State Inaction During the Al-Aqsa Intifada," March 2001; LAW, "Settlers Attack and Harass Palestinians," February 7, 2001; B'Tselem, "Tacit Consent: Israeli Policy toward Settlers in the Occupied Territories," March 2001.
64 For a comparison of the legal rights of Palestinian and Israeli detainees in the Occupied Territories, see B'Tselem, Law Enforcement vis-à-vis Israeli Civilians in the Occupied Territories, March 1994, Appendix 1.
65 For an analysis of this disparity, see B'Tselem, Tacit Consent: Israeli Policy on Law Enforcement towards Settlers in the Occupied Territories, March 2001; and B'Tselem, Law Enforcement vis-à-vis Israeli Civilians in the Occupied Territories, March 1994.
The distinction between (prohibited) "deportation and transfer" of a population of the occupying power to the occupied territory, and (permitted) "settlement" of its citizens "as such" into the occupied territory would be interesting were it not for the official commentary of the Fourth Geneva Convention that was published by the International Red Cross, which states that the relevant provision is intended, inter alia, to prevent colonization of the occupied territory by the colonizer.
Yehuda Blum, "East Jerusalem is not Occupied Territory," Hapraklit (1993), p.189.
75 B'Tselem, Israeli Settlement in the Occupied Territories as a Violation of Human Rights: Legal and Conceptual Aspects, March 1997, pp. 19-20. See also, Al-Haq, The Israeli Settlements from the Perspective of International Law, 2000.
76 B'Tselem, On the Way to Annexation: Human Rights Violations Resulting from the Establishment and Expansion of the Ma'aleh Adumim Settlement, July 1999. B'tselem also documented the October-November 1999 expulsion of some 700 Palestinians in the southern Mount Hebron area, noting that expulsions, house demolitions, expropriation of private land, and designation of large parcels of land to be "state lands" or "closed for military purposes" were among the methods used to create "a collection of land reserves for establishing Israeli settlements or facts that will facilitate annexation of certain lands in the context of the interim and final-status agreements." B'Tselem, Expulsion of Palestinian Residents from the South Mt. Hebron Area, October-November 1999, Case Report, February 2000, p. 20).
78 The Israeli settlers are not part of the protected population as defined by the Fourth Geneva Convention, since, as Israeli citizens, they are not persons "in the hands of a Party to the conflict or Occupying power of which they are not nationals." Fourth Geneva Convention, Art. 4 (emphasis added).
83 Article 58 of Protocol I Additional to the Geneva Conventions of 1948 requires parties to a conflict, to the extent feasible, to remove civilians from the vicinity of military objectives, avoid locating military objectives within or near densely populated areas, and take the necessary precautions to protect civilians and civilian objects from the dangers of military operations.