Evidence update: Unlawful transfer
[7 March 2023] – According to data released by the Israeli Prison Service (IPS), 67 percent of Palestinian children detained by Israeli military forces in the occupied West Bank were transferred out of the territory and detained inside Israel in 2022. The transfer and detention of these children outside occupied territory is classified as a war crime under the Fourth Geneva Convention - a convention ratified by 196 states including Israel in 1951. The practice is also prohibited under the Rome Statute of the International Criminal Court.
Experience gained during World War II 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 criminal responsibility for violations.
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 in military courts for nearly 56 years.
The transfer of Palestinians from the occupied West Bank commenced in or about June 1967.
Based on current rates, it is estimated that 625,680 adults and 22,110 children have been transferred since 1967.
While this policy has been challenged in Israel's Supreme Court twice, both applications were rejected on the basis of the primacy of Israeli domestic law over international law in cases of inconsistency.
While this position is not maintainable under international law these rulings do confirm the absence of a domestic remedy in circumstances where there is no dispute of fact.
The Office of the Prosecutor of the ICC has been in possession of evidence relating to the transfer of children from the occupied West Bank since 9 March 2015. During the intervening eight years, it is estimated that between 2,680-5,360 children have been transferred in violation of international law.
While turning a blind eye to this practice does not enhance Israel's security, opposing accountability does erode confidence in a genuine rules-based order and diminishes the credibility of the international institutions established since 1945 - rules and institutions we all have an interest in defending.
The relevant provisions of the Fourth Geneva Convention (the Convention) relating to the forcible transfer and/or unlawful transfer of prisoners include articles 76
On 5 February 2021, the International Criminal Court determined
that the Court's territorial jurisdiction extends to the territories occupied by Israel since 1967, namely, Gaza and the West Bank, including East Jerusalem.
While the government of Israel publicly rejects the de jure
application of the Fourth Geneva Convention to the occupied West Bank in relation to settlement construction, Israeli 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. Further, in 2023 Israeli military authorities continue to distribute a briefing note at Ofer military court relying on the Convention as justification for prosecuting Palestinian civilians in military courts 56 years later. (Military Courts Unit - Briefing Note - September 2022
See MCW Annual report (2022)
, paragraph 2.1 and applying transfer rates of 79 percent for adults and 67 percent for children as provided by the Israeli Prison Service in December 2022.
See Article 27
of the Vienna Convention on the Law of Treaties, reflecting customary international law (Lagrand Case).
Based on an annual child detention rate of 500-1,000 children and applying a transfer rate of 67 percent as provided by the Israeli Prison Service in December 2022.
Following the ICC's ruling on jurisdiction in February 2021, Israeli media
reported that "senior security officials said a number of ICC member states have agreed to give advance warning to Israel of any intent to arrest Israelis on their arrival in those countries or if a request for an arrest warrant is issued against them." Shortly afterwards, the governments of the UK
(a non-exhaustive list) - all member states of the ICC - issued statements rejecting the ruling of the Court regarding jurisdiction over the IsraeliPalestinian conflict. Although not a party to the Rome Statute, the US
under the Biden Administration also appears to be seeking to undermine the work and independence of the Court. Anecdotal accounts from inside the Court suggest that some donor countries have threatened to cut funding should the Office of the Prosecutor initiate proceedings relating to the Israeli/Palestinian conflict.