Is the UK Government fulfilling its obligations under the Fourth Geneva Convention in respect to G4S?
[4 July 2013] – The Israeli Prison Service (IPS) recently published figures for the number of Palestinians held in Israeli prisons. These figures show that 88 percent of adults and 57 percent of Palestinian child detainees were transferred and detained in prison facilities located inside Israel at the end of May. The remaining prisoners were detained in Ofer prison, located in the West Bank. This is significant because under international law all Palestinians from the West Bank must be detained in facilities in the West Bank. This position is made clear in Article 76 of the Fourth Geneva Convention (the Convention):
“Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein.”
The transfer and detention of Palestinian prisoners outside the West Bank has been going on for over four decades. The practice has twice been challenged in the Israeli Supreme Court but on both occasions the petitions filed on behalf of the prisoners were rejected on the grounds that the domestic regulations permitting transfer are to be given preference over international law. Although this argument has twice found favour with the judges of the Supreme Court, it has no merit whatsoever under international law on the basis that no state can rely on provisions of domestic law as a reason for not fulfilling an agreed international legal obligation – a state of affairs recently confirmed by the UK Foreign Office.
Under international law the issue of transferring and detaining protected persons outside occupied territory is considered so serious that it is one of the few violations that is given “grave breach” status under Article 147 of the Convention.
“Grave breaches … shall be those involving any of the following acts … unlawful deportation or transfer or unlawful confinement of a protected person …”
The consequences for those involved in committing “grave breaches” are spelled out in Article 146 of the Convention:
“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 … 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.”
In fulfillment of this legal obligation the UK passed the Fourth Geneva Conventions Act 1957, providing for the necessary domestic enforcement mechanisms envisaged by the Convention.
Into this regulated legal arena has stumbled the UK/Danish security company, G4S, which has entered into a number of commercial contracts with the IPS to provide goods and services to prisons located in Israel and the West Bank. Although there is no suggestion, as yet, that G4S is involved in the actual transfer of prisoners out of the West Bank, the company is directly linked to the operation of prisons inside Israel where Palestinians are being unlawfully confined. This set of facts naturally gives rise to the question whether the directors of G4S are committing, on a continuing basis, grave breaches of the Convention for which they can be prosecuted under UK law?
However, the potential for legal accountability does not stop with the directors of G4S. The terms of the Convention make it quite clear that the UK Government also has a positive legal obligation to act in circumstances where grave breaches might be occurring. This obligation can be found in Articles 1 and 146 of the Convention, the former providing that:
“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
So is the British Government fulfilling its positive legal obligation under the Convention? This can be judged by a review of what the Government has been saying in Parliament on the subject. On 4 September 2012, the Government was asked whether it was aware that the directors of G4S were possibly violating the Convention. The question was answered by the Secretary of State for Foreign and Commonwealth Affairs, Alistair Burt:
“The issue of contractual arrangements between the Israeli Government and their contractors is a matter for them. We are aware that concerns have been raised about the issue and know that enquiries are going on in that regard, but essentially the contract between G4S and the Israeli Government is a matter for them.”
This answer is unsatisfactory and appears to proceed on the assumption that the Government has no legal responsibility whatsoever – a position that is untenable. In subsequent correspondence dated 1 May 2013, the Foreign and Commonwealth Office sought to clarify the earlier statement made by Alistair Burt in the following terms:
“We wish to take this opportunity to clarify that it was not intended to suggest in Minister Burt's statement (4 September 2012) that ... companies and individuals involved in criminality may be protected from criminal investigation and prosecution as long as they are fulfilling a contractual duty arising from an agreement with the Israeli government. The UK has made clear our concerns about the treatment of Palestinian detainees to G4S, including at a meeting with representatives from G4S in October 2012. However, international law does not impose direct obligations on corporations.”
This response is also unsatisfactory and appears to suggest that the Government believes it has discharged its obligations under the Convention by attending a meeting with representatives from G4S in which it raised its concerns. This clearly falls far short of what is required and expected.
In order to discharge its obligation under the Convention, the UK Government should, as a first step, liaise with the police and Crown Prosecution Service with regard to mounting an investigation to determine if G4S directors and/or the company itself have aided and abetted a grave breach, and if so, whether a prosecution under UK law is warranted, either under the Geneva Conventions Act 1957 or the International Criminal Court Act 2001.
Meanwhile the CEO of G4S, Ashley Almanza, recently announced to shareholders that he saw nothing wrong with the company’s contractual relationship with the IPS, and vowed to continue to provide services to prisons where Palestinians, including children, are being unlawfully detained.
Photo: Ofer Prison by Sylvie Le Clezio