IN NEED OF PROTECTION An Investigation into Israeli Practices in the Occupied Palestinian Territories During the Intifada: 29 September 2000 to 1 October 2001 AL-HAQ 2002 1 © COPYRIGHT 2002 AL-HAQ ALL RIGHTS RESERVED Any quotation of up to 500 words may be used without permission pro- vided that full attribution is given. Longer quotations or entire chapters or sections of this study may not be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or other- wise, or stored in any retrieval system of any nature, without the express written permission of AL-HAQ. AL-HAQ P. O. Box 1413, Ramallah, West Bank Telephone: 972 2 2956421/2954646 Fax: 972 2 22954903 ISBN 965-7022-25-8 Photograph: WAFA News Agency ADWA Design and Printing, Tel. 02 298 0552 2 Contents Preface 8 Introduction 9 PART I: THE LEGAL & POLITICAL CONTEXT: 15 The legal status of the territories 17 The prohibition on annexation 19 The grave breaches system 21 The article 1 obligation 22 Military necessity 23 Israel s position on the applicability of the law of belligerent occupation to the West Bank and Gaza Strip 24 Israel s violative conduct 28 Israeli settlements in the Occupied Palestinian Territories 31 The Oslo Process and the law of belligerent occupation 34 Ehud Barak: Settlement and Camp David 38 PART II: VIOLATIONS 41 The legal status of the conflict 43 CHAPTER I: ISRAEL S USE OF FORCE 46 A) Demonstrations 48 B) Death & injury by indiscriminate & reckless fire 53 Open fire regulations 57 Analysis of pattern 60 The use of force in demonstrations: The legal context 61 3 C) Beatings by members of the Israeli security forces 65 D) Attacks on medical personnel 71 E) The use of force in residential areas 76 Legal context 82 Appendices 84 CHAPTER II: ISRAEL S POLICY OF ASSASSINATION 99 The rationale of the policy 101 The legal context 101 Appendices 106 CHAPTER III: SETTLER ATTACKS DURING THE INTIFADA 119 The responsibility of an Executive Commander to ensure protection for the local population 124 Appendices 125 CHAPTER IV: DETENTION & TORTURE 135 A) Incommunicado detention 135 B) Administrative detention 137 Administrative detention and international law 139 C) Torture 140 High Court Decision & Torture During the Intifada 145 D) The ill treatment & torture of minors during the intifada 148 The use of torture against child detainees in detention centres 151 Conditions of detention 153 Torture: a grave breach of international humanitarian law 155 Appendices 156 4 CHAPTER V: PROPERTY DESTRUCTION 161 Legal provisions 166 Military necessity and the destruction of property 168 Reprisal and collective punishment 175 Appendices 181 CHAPTER VI: RESTRICTIONS ON MOVEMENT 187 A) CLOSURE 187 General closure 188 Comprehensive closure 189 Internal closure 189 The economic and humanitarian impact of closure 191 The economic impact of closure during the intifada 193 The impact of closure on access to health care and emergency treatment 195 -Delay of medical emergency cases at checkpoints 197 -Births at checkpoints 202 B) CURFEW 204 Legal context 206 CASE STUDIES: 209 -Assault on ’Arraba 211 -Education & the intifada 219 PART III: THE LEGAL MECHANISMS FOR PROTECTION 227 Introduction 229 The legal imperative of article 1 229 The grave breaches system and individual liability 232 5 The legal aspects of command responsibility 233 Legal findings and conclusions: 238 Extra-judicial killing 239 The use of force against demonstrators 241 Property destruction 243 Torture 244 Conclusion 246 GENERAL ANNEXES 247 A. The full text of United Nations Security Council Resolu- tion 1322 249 B. Declaration of the Conference of High Contracting Par- ties, 5 December 2001 251 C. Al-Haq s Presentation to Consular Officials in August 2001 255 D. Supreme Court sitting as the High Court of Justice: H.C. 9382/00 261 E. Commission on Human Rights: Report of the Fifth Special Session 289 6 ACKNOWLEDGEMENTS This report was written by Al-Haq’s research unit. Al-Haq would like to thank Carene Metz, who voluntered to work on a number of sections in this report, and whose contribution was invaluable. Al-Haq would also like to thank Sami Andreaus Abu Roza for his assistance in the legal argumenta- tion, and C. Dundas for co-ordinating the project. Al-Haq would also like to thank Nina Atallah, who was responsible for the transliteration. Al-Haq is indebted to its sister organisations, Amnesty International, Hu- man Rights Watch, The Public Committee Against Torture in Israel, B’Tselem, Adameer, Defence for Children International: Palestine Section, the Palestine Centre for Human Rights, Al-Mizan Centre for Human Rights and to Mr. Charles Shammas, whose work greatly informed our own. Al- Haq would also like to express its gratitued to Renata Capella-Solar, whose guidance on the issue of torture was particularly helpful. Al-Haq is grateful to Mr. Jonathan Kuttab for his comments on a draft version. Finally, Al-Haq would like to thank its field workers, who made this work possible. This report is dedicated to them, and to all those who fell in the face of injustice. 7 Preface: “In Need of Protection” covers human rights violations by the Israeli occupying authorities during the first year of the second Palestinian intifada. The report covers the period from 29 September 2000 until 1 October 2001. Like Al-Haq’s reports during the first Palestinian intifada, this report relies on Al-Haq’s first hand information from the field, gathered and prepared by Al-Haq’s trained fieldworkers geographically located in six different locations in the West Bank, including Jerusalem. Information gathered from the field in the form of sworn affidavits and reports con- stitutes the basis on which the legal analysis is built. “In Need of Protection” builds on the low level protection work Al-Haq has been doing throughout the intifada; that is engaging and informing consular officials present in the Occupied Territories of their govern- ments legal obligations towards protecting the civilian population. Al- Haq also wrote a number of targeted briefs to key state parties to the Fourth Geneva Convention, imploring them to take meaningful action intended to uphold the integrity of international humanitarian law. With the current evolution of international criminal law towards a direc- tion where victims of egregious violations of their rights can attempt redress in a number of states, “In Need of Protection” was written to contribute to attempts by Palestinian victims to seek justice, and to con- tribute in ameliorating the most pressing immediate issue for the Pales- tinian community in the West Bank and Gaza, Israel’s culture of impu- nity, which shields most of those Israeli officials and citizens who are liable for crimes against Palestinian civilians. Randa Siniora General Director Al-Haq 8 Introduction On 29 September 2000, after Friday prayers on al-Haram al-Sharif in Occupied East Jerusalem, clashes erupted between Palestinian worship- pers angered by Ariel Sharon’s visit to al-Haram compound the previ- ous day, and members of the Israeli security forces. During the confron- tation, four protestors were shot dead by the security forces within the confines of al-Haram compound. These events proved to be the opening sequence of the largest sustained Palestinian revolt against Israeli rule since the intifada of 1987-1993.1 The circumstances of the current intifada are, however, different from its predecessor in many respects. The current intifada erupted in the wake of a peace process, and the failure of its final status negotiations, which were held in Camp David in July 2000. For the Palestinian population, the Oslo era had brought little substantive respite from Israeli control; settlements continued to expand, and along with measures such as clo- sures, it appeared that Israel was more interested in reconfiguring the occupation rather than actually ending its rule over the West Bank and the Gaza Strip. This led to a groundswell of increasing bitterness amongst the Palestinian population that made Sharon’s provocative perambulation on al-Haram al-Sharif so significant. Sharon’s visit was merely the spark to an already volatile situation. If there are any lessons from the current uprising, it is that the interna- tional community bears responsibility for repeatedly failing to enforce the prescriptions of international law applicable to occupied territories and intended to protect the population therein. For 35 years the interna- tional community of states have tolerated the institutionalised infraction of the laws that were intended to safeguard a civilian population from the predatory temptations of an occupying power. Even through the Oslo 1 For detailed reports on Israeli human rights violations during the first intifada see the following Al-Haq publications: Punishing A Nation: “Israeli Human Rights Violations During the Palestinian Uprising,” December 1987-December 1988, A Nation Under Siege: Al-Haq Annual Report on Human Rights in the Occupied Palestinian Territories, 1990 and Protection Denied, 1991. 9 process, where it was clear that Israel’s continued settlement drive was endangering the prospect for a negotiated resolution of the conflict, lit- tle substantive action was undertaken by key third party states in order to repress violations. Though for the first time the High Contracting Parties to the Fourth Geneva Convention convened on 15 July 1999 to look at ways to ensure Israel’s respect for the Convention, little came of the meeting other than the following declaration: ….The participating High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem. Furthermore, they reiterated the need for full respect for the provisions of the said Convention in that Territory. Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.