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The Netherlands responds to the unlawful transfer and detention question

[26 September 2018] – On 7 December 2015, Military Court Watch (MCW) wrote to the Embassy of the Netherlands in Tel Aviv concerning the legal obligations imposed on the Netherlands under the Fourth Geneva Convention (the Convention) in relation to Israel’s decades long policy of transferring Palestinian child detainees from the West Bank to prisons in Israel.  

Under Article 76 of the Convention it is a war crime to transfer and/or detain protected persons outside occupied territory. Article 146 of the Convention imposes legal obligations on third party states to the Convention, such as the Netherlands, in relation to war crimes, including unlawful transfer and detention, wherever they occur. The Netherlands ratified the Convention in 1954.
On 6 August 2018, the Embassy of the Netherlands responded to MCW’s correspondence stating, inter alia, that:
  • The Netherlands has raised its concerns about the treatment of Palestinian minors in Israeli detention with the Israeli authorities on a number of occasions; and
  • The government of the Netherlands is committed to continuing its engagement on the issue, both through bilateral and multilateral channels, in order to achieve strict compliance of Israel with the applicable international law provisions.
However, the Embassy of the Netherlands did not address the issue raised in MCW’s correspondence relating to  what steps the Netherlands is taking, or intends to take, in order to discharge its legal obligations under the Convention, choosing instead only to focus on Israel’s legal obligations.
Official responses to this question of the unlawful transfer and detention of children have also been received from the USNorwayCanada and Australia. In no case was the issue of third party state obligations addressed, suggesting that there is limited political will to uphold the rule of law in this instance, even in circumstances involving undisputed evidence of war crimes. This unwillingness to act undermines the credibility of the international rules-based order established after 1945 with potentially far reaching consequences.
It is relevant to note that the unlawful transfer or confinement of a protected person is also classified as a war crime under Article 8(2)(a)(vii) of the Rome Statute of the International Criminal Court, acceded to by Palestine in January 2015 and ratified by the Netherlands in July 2001.