Israel/Occupied Territories: Forcible transfers of Palestinians to Gaza constitutes a War Crime
The two Palestinians, Intisar and Kifah 'Ajuri, have been in detention since 4 June and 18 July, respectively, but have never been charged and no proceedings have been initiated to bring them to trial. The Israeli government claims that it cannot try them because this would expose the source of the evidence against them.
'Today's ruling effectively allows for a grave violation of one of the most basic principles of international human rights law - notably the right of any accused to a fair trial and to challenge any evidence used against them,' Amnesty International said.
They are the sister and brother of Ali 'Ajuri, who was extrajudicially executed by the Israeli security forces on 6 August 2002 near Nablus and who is alleged to have been involved in organising suicide attacks in which several Israelis were killed. Intisar 'Ajuri is alleged to have assisted her brother by, among other things, having sewn belts for explosives used by suicide bombers, and Kifah 'Ajuri is alleged to have provided a hiding place for his brother and to have acted as a look-out for him.
'Anyone suspected of a recognisably criminal offence should be promptly charged and brought to trial. Otherwise, they should be released,' the organisation added.
Today's ruling also allows for a grave breach of international humanitarian law. According to the Fourth Geneva Convention, Palestinians living in the territories which have been under Israeli military occupation since 1967 are protected persons.
'The unlawful forcible transfer of protected persons constitutes a war crime under both the Fourth Geneva Convention and the Rome Statute of the International Criminal Court. Under the Rome Statute such violations may also constitute crimes against humanity,' said Amnesty International.
In its decision today the High Court of Justice ruled that forcible transfer to the Gaza Strip can only be used for people who have been personally involved in serious crimes and cannot be used as a deterrent. However, Amnesty International believes that such unlawful forcible transfer of relatives of people allegedly responsible for attacks against Israelis is being used by the Israeli government and army as a form of collective punishment. Such measure is forbidden by Article 33 of the Fourth Geneva Convention, which states that: 'No protected person may be punished for an offence he or she has not personally committed.'
The decision by High Court of Justice today was the last step in the appeal procedure available to Intisar and Kifah 'Ajuri. The process started when the IDF West Bank Commander issued the orders for the unlawful forcible transfer of the two, and of another man on 1 and 4 August 2002.
In July 2002 the Israeli authorities announced their intention to forcibly transfer from the West Bank to the Gaza Strip relatives of people known or suspected of having organised or participated in attacks against Israelis. On 1 August the IDF West Bank Commander signed an amendment to Military Order 378 (of 1970, concerning security regulations), allowing for the forcible transfer of Palestinians from the West Bank to the Gaza Strip.
Forcible transfer involves movement against a person's will within national frontiers. Deportation involves movement against a person's will across national frontiers. Amnesty International's opposition to the forcible transfer of the two above-named and any other individuals is based on the following international standards:
The Fourth Geneva Convention, which:
- defines 'unlawful deportation or transfer or unlawful confinement of a protected person' as a grave breach of the Convention and therefore a war crime. (Article 147).
- prohibits '[c]ollective penalties and likewise all measures of intimidation' as well as '[r]eprisals against protected persons and their property.' (Article 33)
- stipulates that: 'Individuals or mass forcible transfers, as well as deportations of protected persons form occupied territories to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motives'. (Article 49)
- states that: 'Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentence therein'. (Article 76)
The Rome Statute of the International Criminal Court, which reflects customary international law and:
- defines deportation or forcible transfer of population as 'forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law'.
- defines as a war crime in Article 8(2)(b)(viii) 'the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory' by the occupying power.
- stipulates that the deportation or forcible transfer of population would also constitute a crime against humanity, when carried out in a widespread or systematic way, as part of a governmental policy. (Article 7 (d)).