Palestinian lawyer to IMRA:
Israel obligated to immediate release any Palestinian who attacks Israel until Israel completely withdraws
Dr. Aaron Lerner - IMRA 11 October 2011
The following is a fascinating exchange with a Palestinian lawyer who practices in the West Bank.
He argues that since Israel signed the Oslo agreements with the PLO that "the armed hostility status is already over and therefore Israel should not imprison Palestinian fighters as they have the right to defend their land regardless the nature of struggle."
That's right: on the one hand "the armed hostility status is already over" so Israel should release any Palestinian it captures. On the other hand, the same Palestinians can kill as many Israelis as they wish "as they have the right to defend their land regardless the nature of struggle."
Dear Dr. Aaron Lerner,
Please find my answers in English below:
1. Do you believe that the declaration of the sovereign state of Palestine obligates Israel to treat the Palestinians it now holds as "Prisoners of War"?
Surely the declaration of the sovereign state of Palestine will automatically make the Palestinian prisoners POWs since they will become part of an internationally renowned sovereign state and not under Israel authority albeit Israel’s refusal to acknowledge the sovereign Palestinian state according to the principles of the international law despite the fact that Israel is not part of the Geneva Conventions. Additionally, the kidnapping of any Palestinian citizen from 1967 territories will force Israel to consider him POW and prohibit Israel from transferring him outside his homeland since in this instance he is simply in a state of legitimate self-defence, and will be governed by the third Geneva Convention. Accordingly, POW is simply a legitimate fighter (not mercenaries or collaborators), therefore once the Palestinian state is internationally acknowledged, this will strengthen the status of the Palestinian fighter as legitimate fighter defending an internationally-acknowledged sovereign state.
2. If the Palestinians held by Israel have the status of "Prisoners of War" is Israel obligated to release the "Prisoners of War" before it makes a peace agreement with the Palestinians that "ends the conflict"?
Yes, according to article 118 of the fourth Geneva Convention, which did not condition but rather stressed on the fact that once the actual armed hostility status is over the release of all prisoners of war becomes a must, and since a peace agreement has already been signed between Israel and the Palestinians an immediate release of all Palestinian prisoners must take effect.
3. Until a peace agreement is reached between Israel and the Palestinians, what is the status of Palestinians who engage in violent "liberation activity" against Israel after the declaration of the sovereign state of Palestine and are captured and held by Israel? Are they "Prisoners of War"? When is Israel obligated to release them?
As I mentioned earlier, the Palestinian fighter is a legitimate fighter, and upon his capture he is considered a POW according to second paragraph of the fourth Geneva Convention and article 44 of the first additional protocol which require (in this situation) only two conditions to consider the prisoner a POW, and they are:
1. the prisoner has a responsible leadership (and the Palestinian prisoner does have this leadership despite the political situation),
2. Respect the rules of engagement governed by international law such as the wearing of the uniform by combatants different to that of the regular and the carrying of arms, which is already practiced by the Palestinian resistance.
As for when Israel is obliged to release them, I believe that since a peace agreement has already been signed the armed hostility status is already over and therefore Israel should not imprison Palestinian fighters as they have the right to defend their land regardless the nature of struggle, however, once Israel withdrew from their land it will invalidate their legitimate and legal pretext of fighting to liberate their land, and there is no law that allows the imprisonment of anybody who practices lawful actions. Therefore, the declaration of Palestinian sovereign state further strengthen this concept.
4. Do the rules of the Geneva Convention regarding "war crimes" apply to Palestinian "Prisoners of War" held by Israel? For example, can Palestinians who intentionally targeted and killed Israeli civilians be charged with "war crimes"?
Firstly, the definition of a war crime is the violation of the laws and rules of war, which include but not limited to murder, ill-treatment, deportation of the civilian population to work as slaves or for any other purpose, and include in the occupied territories any kind of murder, ill-treatment of prisoners, the killing of hostages, the plunder of public and private properties, the malicious destruction of cities and villages, the destruction that is not justified by military necessities, and this is something the Palestinian fighters did not do, but the contrary is true, and if we investigate the invasion of Jenin refugee camp back in 2002 we will find examples of war crimes committed by Israel. However, neutrally speaking, in case a Palestinian fighter committed war crimes there is nothing that prevent him from standing a just trial by specialised and competent courts that specialises in war crimes, and this will be even fairer for the Palestinian fighter than being on an Israeli assassination list without a just trial as it is currently practiced by Israel.
5. Finally, a background question for the article: are you a legal consultant for any official Palestinian organ (either media - WAFA, or government - PA, or another body)?
I am an independent attorney and work at my own independent office to offer attorney services.
Attorney Hatem Shahin