Forcible transfer of children
[30 January 2022] – According to data released by the Israeli Prison Service (IPS), 64 percent of Palestinian children detained by Israeli military forces in the West Bank were transferred and detained inside Israel in 2021. 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.[i] The practice is also prohibited under the Rome Statute of the International Criminal Court (ICC).[ii]
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.[iii] 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.[iv]
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.[v] 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.[vi]
While this contrasting approach is understandable on the basis of an interests-based 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.[vii] 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 long-term viability of the rules-based order. Ignoring these rules to support a friend and strategic partner, is not a rules-based order.
Since the International Criminal Court determined that it possessed jurisdiction over the territories occupied by Israel in 1967 (East Jerusalem, West Bank and Gaza) in February 2021, it is estimated that between 320 and 640 children have been forcibly transferred and/or unlawfully detained inside Israel in violation of the Fourth Geneva Convention and Rome Statute.[viii] This figure increases on a daily basis. The Office of the Prosecutor of the ICC has been in possession of evidence relating to the unlawful transfer of Palestinian child detainees from the West Bank to detention facilities inside Israel since 9 March 2015.
[i] 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 …
[ii] 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.
[iv] 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.
[v] 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.
[vi] 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 - More recently, US Secretary of State, Antony Blinken, in a speech given in Berlin on 20 January 2022, stated, with reference to Russia and Ukraine, that: "Once the principles of sovereignty and self-determination are thrown out, you revert to a world in which the rules we shaped together over decades erode and then vanish ... To allow Russia to violate those principles with impunity would drag us all back to a much more dangerous and unstable time ... It would also send a message to others around the world that these principles are expendable, and that, too, would have catastrophic results." See https://is.gd/xiR8VW
[vii] Russia’s purported annexation of Crimea and China’s ongoing attempts to annex the South China Sea.
[viii] This estimate is based on a detention rate of 500-1,000 children each year and applying the Israeli Prison Service transfer rate of 64 percent in 2021.
