Evidence update: forcible transfer of children
[1 December 2020] – According to recent data released by the Israeli Prison Service (IPS), an average of 75 percent of Palestinian children detained by Israeli military forces in the West Bank were transferred and detained inside Israel in 2020.[i] The transfer and detention of these children outside the West Bank is classified as a war crime under the Fourth Geneva Convention – a treaty drafted in the aftermath of the Second World War and ratified by 196 States, including Israel in 1951.[ii] The practice is also prohibited under the Rome Statute of the International Criminal Court (ICC).[iii]
Experience gained during the Second World War convinced a generation of leaders that the transfer of population groups, in or out of occupied territory, must be prohibited in all circumstances. This belief was so firmly held that it was enshrined in law attaching personal criminal responsibility for violations.[iv] Arguments suggesting that this law does not apply to Israel and Palestine are without merit and run contrary to over 40 UN Security Council resolutions and Israel’s own legal justification for prosecuting Palestinian civilians, including children, in military courts.[v]
Israel’s policy of transferring and detaining Palestinians from the West Bank inside Israel has been challenged in Israel’s Supreme Court twice. The petitions filed on behalf of the detainees were rejected on both occasions based on the primacy of Israeli domestic law over provisions of international law where the two are in direct conflict. This position is not maintainable under international law by virtue of the Vienna Convention on the Law of Treaties, reflecting customary international law (Lagrand Case).[vi]
While there is universal acceptance that the transfer of prisoners from occupied territory is unlawful, no state is currently prepared to pay more than lip service to the principle in relation to Israel and Palestine.[vii] Contrast this situation with the response to Russia’s purported annexation of Crimea in 2014 and subsequent transfer of Ukrainians to prison facilities located inside the Russian Federation. Russia’s actions not only resulted in near unanimous condemnation but were promptly followed up with targeted sanctions imposed by the US, UK, EU, Australia and Canada – all citing the importance of respect for the rule of law.[viii]
While this contrasting approach is understandable on the basis of an interests-based world order, it undermines the credibility and weight that can be given to arguments based on a “rules-based” approach, including those invoked by the West in relation to recent actions by Russia and China.[ix] Arguments seeking to distinguish the situation in Israel and Palestine, presumably intended to exempt policy makers from their responsibilities, run the risk of doing irreparable harm to the evolution and survival of a rules-based order. The application of a genuine rules-based order requires leadership capable of applying principles without fear or favour, regardless of shorter-term interests.
In 2013, UNICEF issued a report on children held in Israeli military detention and recommended that: “In accordance with international law, all Palestinian children detained in the Israeli military detention system shall be held in facilities located in the occupied Palestinian territory.” Israel’s Ministry of Foreign Affairs responded by appointing the military prosecutor in the West Bank as a liaison officer to UNICEF with the stated purpose of implementing the report’s recommendations.[x] Two years later, UNICEF reported that the military prosecutor had informed the UN agency that “no further action would be taken” regarding this recommendation.
Since the Office of the Prosecutor of the ICC announced the opening of a preliminary examination into the situation in Palestine in January 2015, it is estimated that 20,000 Palestinian detainees have been forcibly transferred and/or unlawfully detained inside Israel including over 1,500 children.[xi] A decision on the Court’s jurisdiction to adjudicate on the situation in Palestine, including the transfer of prisoners, is pending. Legal proceedings relating to the transfer and detention of Palestinian children outside the West Bank involves no dispute of fact.
[i] This data includes children detained up to 30 September 2020.
[ii] The relevant provisions of the Fourth Geneva Convetion relating to the forcible transfer and/or unlawful transfer of prisoners are:
Article 76 - Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein.
Article 146 – The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ' prima facie ' case.
Article 147 – Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: … unlawful deportation or transfer or unlawful confinement of a protected person …
[iii] Currently 123 countries are States Parties to the Rome Statute of the International Criminal Court, including Palestine, on whose territory transfer originates from. The relevant provisions of the Rome Statute relating to the forcible transfer and/or unlawful transfer of prisoners are:
Article 8 - The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. For the purpose of this Statute, "war crimes" means: Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: … Unlawful deportation or transfer or unlawful confinement.
Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: … The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.
[v] While the government of Israel publicly rejects the de jure application of the Fourth Geneva Convention to the West Bank in relation to settlement construction, Military Order No. 3, which established the military courts on 7 June 1967, expressly relied on the Convention as the legal basis to do so and in December 2019 the military authorities continued to rely on the Convention to justify prosecuting Palestinian civilians, including children, in military courts.
[vi] Article 27 – A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
[vii] In 2015, MCW wrote to a number of diplomatic missions in the region requesting information on each state’s position on the forcible transfer of children from the West Bank. So far MCW has received responses from: US, Norway, Canada, Australia, Netherlands, EU and UK. MCW is still awaiting responses from Germany, Belgium, Sweden, France, Ireland, Spain and Denmark.
[viii] In January 2017, President elect Joe Biden, speaking then as the out-going Vice President, reaffirmed the importance of sanctions on Russia until it fully complied with its legal obligations in relation to the Crimea - https://is.gd/39EwZG
[ix] Russia’s purported annexation of Crimea and China’s ongoing attempts to annex the South China Sea.
[x] The Military Prosecutor in the West Bank at the time was Lt. Col. Maurice Hirsch, a resident of an illegal West Bank settlement. In November 2016, Hirsch left his post as Military Prosecutor in order to take up a consultancy position with the non-governmental organisation NGO Monitor.
[xi] Assumes an annual detention rate of 500 children each year since January 2015 and applies a long-term average annual transfer rate of 52 percent provided by the Israeli Prison Service (IPS) in 2019.