There are several things that strike you when first entering Jenin refugee camp: images of the Star of David spray-painted on the walls, the exposed fronts of houses which had been bulldozed, half-set tables, children’s toys scattered and then, as you approach Hawashin, a strong sweet odor. The Hawashin area of the camp, some 400 by 500 square meters in size, and comprised of about 140 homes and several hundred families, has been erased. An elderly man stands near the remains of a house at the area’s western edge; his daughter’s body lies underneath.

Moving toward Jurrat al-Dahab, an old woman sits near her now completely demolished house. Just above her on the side of one of the few buildings still standing hangs the wheelchair of her disabled son. She indicated that there were a number of attempts to rescue her son, who is completely disabled, during the period in which the Israeli military had ordered people from their homes. As all men of conscription age had been arrested from the area, she was left to try and remove her son from her home. She was unsuccessful. By the time she was able to negotiate the assistance of other female relatives and neighbors, they discovered that the east wall of the house had collapsed on top of him. The bulldozing of the house continued, despite the efforts of those outside and, according to her, even the Israeli military, to warn the bulldozer driver that there was a person inside. Her son’s wheelchair has been recovered; his body remains missing. So she waits.

Patterns of abuse emerge from the stories of those detained by the Israeli military, including the use of civilians for military operations. In one case, a 42 year-old teacher from the Jenin refugee camp was taken from his home in the early hours of the morning and, for two days, the soldiers detained him. As they conducted their operations in the camp, including house-to-house searches, soldiers placed him in front. He was forced to knock on doors and enter homes even before the soldiers’ dogs were sent in to sniff for explosives. Only when the dogs came out would the soldiers enter. In another case, a father and son were placed on a balcony while soldiers stood behind them, using their shoulders to support their rifles as they exchanged gunfire with Palestinian fighters. These were not isolated instances: cases of civilians being used by the Israeli military for military operations were documented by both Amnesty International and Human Rights Watch. In May 2002, seven Israeli and Palestinian human rights organizations [1] petitioned the Israeli Supreme Court seeking an order instructing the Israeli army to stop using Palestinian civilians as human shields, as hostages and for other military purposes. [2]

In Nablus, the physical destruction of the city is more widespread but equally compelling. In one of the houses positioned in a key entryway to the Old City, a missile hit. There was no warning. There were three women on the second floor; two died and one young girl is now paralyzed. Of those fortunate enough to be in the courtyard when they heard the missile approaching, one has burns over part of his upper body and shrapnel in his eyes, which doctors have been unable to remove. One family member, who escaped with a broken leg, sat inside what is now a shell of a house and described losing part of his family in ten seconds. Next to him is the rubble of another house, which had been bulldozed as the Israelis tried to clear a path into the Old City. All eight members of the family died under the crush of the rubble. And so it goes.

A New Chapter

Media attention to the Occupied Territories has faded, leaving the impression that there has been a withdrawal from the territories and that Operation Defensive Shield has come to a close. In fact, like most things here, the occupation is simply entering a new chapter. The Israeli military remains in the West Bank, and checkpoints affect all aspects of travel to and from West Bank cities. Incursions, albeit on a smaller and shorter scale, continue. So does the ever mounting death toll. On May 17, a 7 year-old boy was killed in the ‘Askar refugee camp outside Nablus. Tanks fired into the entryway of the house. His father was en route with the boy to prayer. When he heard the fire, he tried to shield his son but the boy was struck by a bullet in the stomach and died. The father has shrapnel in the lower half of his body; his left side is now partially paralyzed. He sat holding a picture of the boy and asking, “why?” In the same military operation an 8 year-old boy was hit with a bullet that entered the right side of his face and lodged in his neck. He now is partially paralyzed in the right side of his body.

In the debris of recent Israeli incursions into the West Bank and Gaza, the scenario becomes hauntingly familiar. The images imprinted from the Jenin refugee camp and the Old City of Nablus mark not an abrogation of Israeli policy in the Occupied Territories, but rather a continuation of military and administrative practices, albeit on a more significant scale, that violate customary, as well as international human rights and humanitarian law. The question is not whether such violations occurred, but rather whether these violations reach the level of grave breaches and, following on, if these breaches can be said to form a pattern that constitutes crimes against humanity.

Whatever the arguments as to the degree to which international humanitarian and human rights law have been violated, what is clear and unequivocal is that we are bearing witness to the physical destruction of a population. The issues raised in Jenin, Nablus, Tulkarm, Ramallah and Bethlehem — indiscriminate use of lethal force, failure to protect the civilian population, prevention of access to medical and humanitarian relief services, torture or other cruel, inhuman or degrading treatment of Palestinians, use of collective punitive measures, arbitrary arrest and detention — are not new. Rather they constitute a pattern of abuse that precedes Operation Defensive Shield and continues. The effect of these practices on civil society is immediate and visible as property and lives (as well as livelihoods) are lost. Perhaps more worrisome are the yet to be factored (or indeed even determined) long-term effects of these extraordinary measures.

Questions of Definition and International Law

Defining the situation in the Occupied Territories leads us into gradations of gray. Inextricably linked to how the situation is defined is what legal frameworks apply. In the state response to a number of recent Israeli High Court petitions, there is an attempt to create a third body of law — one that is neither fully within an international humanitarian or a human rights law framework. In its response to a petition challenging its policy of “targeted killings,” the state argues that the situation is defined as an “armed conflict short of war,” a classification that is confusing at best but suggests the application of humanitarian law. However, in its reply to the High Court, with regard to Military Order 1500, [3] the state has argued that those engaged in hostilities are “unlawful combatants” and those detained are classified as “criminal detainees.” This ambiguity places the discourse in a gray area — neither fully within humanitarian or human rights law. A Red Cross opinion submitted to the Knesset Committee on Foreign Affairs and Security on the question of unlawful combatants posits:

Distinction between combatants and civilians is one of the cornerstones of International Humanitarian Law. The system of protection and classification laid down in the Third and Fourth Geneva Conventions contains no loophole. Under International Humanitarian Law, a person is considered to be either a combatant or a civilian: there is no third option…. A person without combatant status who is engaged in military activities may be prosecuted for the mere fact of taking up arms or for other criminal acts committed during combat…. Such a trial must respect internationally recognized judicial guarantees.

While the purpose of Military Order 1500 is to legalize the mass detentions taking place during the Israeli attacks, the army declines to treat detainees as either prisoners of war, with relevant humanitarian law protections, or as protected civilians, with rights afforded under human rights law. [4] As Pictet has argued:

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. [5]

The question of what laws apply is not just a matter of academic discourse. Determining what body of laws applies directly impacts the rules that (at least in theory) are meant to govern the conduct of state (and increasingly, non-state) actors. In creating what we are calling a third body of law, that falls in between human rights and humanitarian law, Israel’s practice is increasingly to exact from each (but mainly from international humanitarian law) its benefits, but neglect its obligations.

With regard to the Occupied Territories, we argue that Israel is an occupying power bound by the Fourth Geneva Convention and, in addition, to human rights standards of law enforcement which apply to the conduct of Israeli forces. Therefore, Palestinians are all civilians and protected persons who lose this protection only while they engage in hostilities. Under the Fourth Geneva Convention, states may be held criminally liable for acts which constitute “grave breaches” under Article 147. Additionally, the systematic closures of towns and villages and prolonged curfews are collective punitive measures that must be evaluated under Article 7 of the International Covenant on Civil and Political Rights, to which Israel is a signatory. Article 7 contains a non-derogable prohibition against cruel, inhumane or degrading treatment or punishment.

War Crimes and Crimes Against Humanity

We argue, based on research conducted since Operation Defensive Shield began on March 29, that the Israeli military forces committed war crimes in relation to its military operation in both Jenin and Nablus. [6] We cite the policy of assassination or “targeted killings” and argue that this amounts to “willful killings” within the meaning of Article 147 of Geneva IV. We also note that firing upon ambulances, injuring or killing medical personnel trying to rescue and treat the sick and injured, and failing to ensure that wounded and sick receive medical care and obstructing humanitarian assistance are practices which constitute a grave breach of “willfully causing grave suffering or serious injury to body or health.” The physical destruction of property in Jenin and Nablus and the ongoing policy of housing demolitions “not justified by military necessity and carried out unlawfully and wantonly” also fall within the category of grave breaches under Article 147. The use of Palestinian civilians to assist military operations can be argued to constitute “wilfully compelling a protected person to serve in the armed forces of a hostile Power” and in some documented cases “willfully caus[ed] great suffering or serious injury to body or health.” As well, in the case of Palestinian detainees, there are widespread allegations of “torture or inhuman treatment” and those that are arrested have been tried before military courts in trials which fall short of international
standards, thus “willfully depriving a protected person of the rights of fair and regular trial.”

It is also possible to argue that the patterns of abuse that have emerged since September 2000, but intensified during Operation Defensive Shield, constitute crimes against humanity. Under the Rome statute of the International Criminal Court, crimes against humanity are defined as a number of acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Additionally, persecution against any identifiable group on political, racial, national, ethnic, cultural, religious, gender or other similar grounds would be a crime against humanity. In our view, the pattern of Israeli practices against Palestinians, including the war crimes we have detailed earlier, determine a systematic and widespread attack on the Palestinian civilian population, and as such would constitute crimes against humanity.

Duties Imposed on the State

While international law delineates the scope and obligation of a state to victims of crimes under law, it should be noted that a state’s primary duty is to take robust legal and administrative measures to prevent violations. These measures affirm that: a state has a duty to ensure that its domestic law is in compliance with international legal norms; and that its practices are in conformity with the treaties it has signed; and that it provides fair, prompt and effective access to justice.

When a crime under international law has occurred, a state has a duty to: investigate violations; provide mechanisms that ensure prompt and adequate reparation for victims of crimes; and ensure that remedies are sufficient to prevent recurrence of violations.

Within international law, and with little margin of appreciation afforded, a state has a duty to prosecute those alleged to have committed violations of international human rights or humanitarian law. As noted in the Basic Principles, violations of international human rights and humanitarian law norms that constitute crimes under international law carry the duty to prosecute persons alleged to have committed these violations, to punish perpetrators adjudged to have committed these violations, and to cooperate with and assist states and appropriate international judicial organs in the investigation and prosecution of these violations. [7]

The Inter-American Court of Human Rights has found in a number of cases that a “state has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.” [8]

The European Court of Human Rights has found that “the notion of an effective remedy entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure.” [9] The state is afforded some discretion regarding the process for uncovering the truth, the means by which justice is achieved and what reparations are provided.

To date, Israel has failed in its obligations to thoroughly investigate violations of international law as well as the more serious allegations of war crimes in the Occupied Territories. In the first instance, it has failed to establish a domestic commission of inquiry. With the exception of minor offenses in respect to looting, it has failed to indict any commander or officer for any act committed during Operation Defensive Shield. It has also failed to cooperate with the UN fact-finding mission established by the Secretary-General in May 2002, which was established to investigate the events in Jenin. Despite repeated calls by the international community to thoroughly investigate potential violations, the Israeli government has remained steadfast in its claim that actions taken during the recent offensive were “militarily justifiable,” as part of Israel’s right of self-defense and its war against terrorism. However, as we have argued, evidence to date refutes claims that actions taken by the Israeli military forces were of military necessity.

In 1990, the UN Security Council voted unanimously in favor of Resolution 681 which calls for the government of Israel to, “accept the de jure applicability of the Fourth Geneva Convention” with regard to territories occupied by Israel since 1967. Moreover, it calls on High Contracting Parties to the Convention to “ensure respect” by Israel of the provisions of the Convention, “in accordance with Article 1 thereof.” The responsibilities delineated are clear. Specific to the Occupied Territories, High Contracting Parties are obliged to undertake all legitimate state actions to ensure that Israel is in compliance with the provisions of the Fourth Geneva Convention. We further argue that Israeli policies in the Occupied Territories including those we have detailed do constitute “grave breaches” of the Convention. Accordingly, contracting parties to the Convention are not only morally compelled, but indeed obligated, to ensure that those responsible for such acts are held accountable.

Endnotes

[1] These were Adalah, Association for Civil Rights in Israel, LAW, Physicians for Human Rights-Israel, B’Tselem, the Public Committee Against Torture in Israel and HaMoked: Center for the Defense of the Individual.
[2] In light of the information provided in the petition and as an initial response to the petition, the Israeli army issued an order banning all forces in the field from using civilians as human shields or taking them as hostages, without admitting or denying that it employed such practices. The Israeli army clarified that the use of civilians to enter the homes of other Palestinians during military operations is also prohibited, in cases where the military commander believes that there might be a danger to the body of the civilian. It was also noted that the army intends to conduct a comprehensive internal investigation regarding the issues raised in the petition. While the case is still pending before the Israeli Supreme Court, it is quite obvious that the army implicitly admitted to using Palestinian civilians as human shields. See H.C. 3799/02, Adalah, et al vs. Yitzhak Eitan, Commander of the Israeli Army in the West Bank, et al (filed May 5, 2002; case pending).
[3] Military Order 1500, issued by the Israeli army on April 5, 2002, permits the 18-day incommunicado detention of Palestinians arrested during the Israeli incursions into the Palestinian cities and towns in the West Bank as part of Operation Defensive Shield. H.C. 3239/02, Iyad Mahmud Ishak Mirab, et al vs. the Commander of the Israeli Army in the West Bank (filed April 16, 2002; case pending).
[4] From the beginning of Operation Defensive Shield to May 6, the total number of Palestinians arrested is 7,000; the total number of Palestinians released from detention 5,600; the total number of Palestinians currently detained 1,500; and the total number of Palestinians currently held in administrative detention 990.
[5] Jean S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, 1958), pp. 50-51.
[6] Although limiting our comments to Jenin and Nablus in no way implies that war crimes were not committed in other areas, the focus of our field and legal research were in these two primary areas.
[7] Commission on Human Rights’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, p. 8.
[8] One of these cases is Inter-American Court of Human Rights, Case of Velazquez Rodriguez, Judgment of July 29, 1988, Series C, No. 4, para. 174.
[9] ECHR, Askoy vs. Turkey, 1996, No. 100/1995/606/694, para 98.

How to cite this article:

Jamil Dakwar, Kathleen Cavanaugh "Grave Breaches," Middle East Report 223 (Summer 2002).
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