The Fourth Geneva Convention and the Use of Force during Occupation
The applicability of the Fourth Geneva Convention
Since the beginning of Israel’s occupation of the Gaza Strip and West Bank including East Jerusalem in 1967, the international community has recognised it as the belligerent occupant, these areas as occupied territories, and the application of the IV Geneva Convention. To this end the international community has persistently demanded that Israel comply with the Convention, in respect of the Occupied Palestinian Territories.
The signing of the Interim Agreements brought about a temporary legal situation in the Gaza Strip and parts of the West Bank. However it is asserted by the Palestinian Centre for Human Rights, a view supported by the International Committee of the Red Cross that as Israel’s occupation of these areas was not brought to an end either legally or physically by the Interim Agreements, the IV Geneva Convention continues to apply.
The Interim Agreements removed most of Israel’s military presence in the populous areas of the Gaza Strip and inside towns and villages of the West Bank, but maintained Israel’s military positions inside the Gaza Strip around the Israeli settlements and at border points. The Cairo Agreement established the PNA and transferred to it limited autonomy in Jericho and most of the Gaza Strip. These responsibilities are related only to internal security and civil affairs, and exclude responsibility in respect of overall security and foreign relations. The Agreements provided for a Palestinian police force to enforce civil law in these areas. The police have limited civilian responsible with overall security remaining in the hands of Israelis forces. The occupation thus in a practical and legal sense remains in force and in these circumstances the Fourth Geneva Convention remains applicable.
The Palestinian population of the Occupied Territories retains all rights and benefits of the IV Geneva Convention and Israel retains its obligations as Occupying Power under the Convention.
Force Employed by Israeli Military Against Civilians
The Geneva Convention prohibits the use of lethal military force against civilians. The excessive and indiscriminate force used to cause death and injury to Palestinian civilians amount to grave breaches of the IV Geneva Convention. Article 147 of the Fourth Geneva Convention states:
“Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing …wilfully causing great suffering or serious injury to body or health …. extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
Wilful killing and wilfully causing serious injury
Under the Fourth Geneva Convention Israeli forces must have acted in an intentional and violent manner causing death and injury to civilians. Medical evidence on the location of wounds sustained by Palestinians - a large number of injuries were to the head, neck, chest, and abdominal areas and a number of people were shot in the back - supports the view that Israeli troops shot to kill or cause severe injury, rather than to disperse the demonstrators.
Extensive destruction to property
In a dangerous escalation in the use of force by Israeli military, three Huey Cobra gunship helicopters were employed in Rafah and Khan Younis and civilians and civilian homes were fired upon indiscriminately. The fire power was excessive and, on the whole, people who were not involved in the demonstrations were killed and injured. These helicopters were deployed for several hours on 26th and 27th September, in Rafah and Khan Younis. Eyewitness accounts state that upon the approach of the helicopters towards these populous areas, the people ran for cover inside buildings. However, the firing from helicopters was indiscriminate and excessive, and inevitable injuries and damage occurred to civilians and civilian objects.
Targeting of civilians and civilian objects at any time is absolutely prohibited and, in the circumstances, the employment of heavy weaponry against civilians and civilian objects is a breach of the IV Geneva Convention and of the fundamental principles regulating the use of armed force.
The only legitimate objective of Israeli forces operating in the Occupied Territories could have been to restore order or in military engagement. However, the facts, as set out in the International Human Rights Law section, demonstrate that the force causing the deaths and injuries of Palestinians in late September 1996 were not legitimate. On the basis of our investigations there was no justification for the use of force against protected persons.
Furthermore, the fact that unarmed civilians including children, journalists and medical teams came under live fire from Israeli troops contradicts their justification that they were shooting in self-defence.
Of the 31 Palestinians killed in the Gaza Strip on 26th September, one-third were 18 years old or less. And 53.9 percent of those who the PCHR documented as wounded were 18 years or less. This extremely high number of child casualties further indicates the indiscriminate and excessive force used by Israeli soldiers.
It is a well-established rule of international law that humanitarian assistance should never be regarded as an interference in a conflict. Furthermore, medical personnel carry a privileged and protected status when aiding the wounded in the field. To ensure that mistakes are not made both medical personnel and ambulances should be clearly marked with appropriate insignia.
Israeli armed forces committed grave breaches when they fired on medical teams aiding wounded Palestinians during the clashes and transporting them in emergency vehicles. All Palestinian ambulances were clearly marked and medical personnel wore appropriate distinguishing uniforms. At Erez Checkpoint, Israeli soldiers fired at a clearly marked ambulance, shooting the driver, Mohammed Mutlaq ‘Ashur al-Nimnim, in the back. Basil Ibrahim Hussein Na’im, a nurse, was killed by Israeli troops, and another nurse, Mohammed Hassan ‘Abdul Hamid ‘Imad, was shot in the abdomen, chest and shoulder, while assisting injured demonstrators, despite their wearing appropriate uniforms.
As civilians, journalists are protected under the IV Geneva, but many journalists and photographers covering the events came under Israeli fire, and a number were injured.
Three Palestinian journalists were wounded by Israeli fire in the Gaza Strip: Reuters photographer, Shams al-Din ‘Abdul Rahman Shana’a, was shot by Israeli soldiers in his right leg from a distance of 300 metres at Erez Checkpoint; Journalist Khalil Sa’ada was shot in his right thigh, at Erez checkpoint; WTN-TV photographer Majdi Jamil al-’Arabid, was shot in his right hand at Kfar Darom.
Statistics of Deaths and Injuries
According to hospital statistics, 39.3 percent of Palestinians wounded by live ammunition and treated in Gaza hospitals were hit in the upper part of the body. Twenty-nine percent of those who were killed were shot in the back or in the back of the head, indicating both that those who were killed were not posing a threat to Israeli troops when they were shot and that Israeli forces may have been aiming to kill or seriously injure. Many of those killed were shot from considerable distances, some from Israeli marksmen using, it is reported, high-powered telescopic rifles.
These statistics indicate both that at the time they were shot, the demonstrators posed no immediate threat, and that Israeli forces employed snipers and sharp-shooters against the demonstrators. This evidence corroborates eyewitness accounts.
Engagement Between Palestinian Police Officers and Israeli Soldiers
Palestinian police have civil responsibilities only, as defined by the Interim Agreements. Ab initio they do not have the status of non-combatants, therefore have the full protected status of civilians and were not legitimate targets.
The protected status of civilian police in the case of armed conflict is elucidated upon in Article 43 of Protocol I to the Geneva Conventions which provides some guidance as to their status, and in Articles 1-3 of the 1907 Hague Regulations which are customary international law. Both instruments have a similar approach as they define “civilian” broadly as: any person who does not belong to the category of armed forces; where there is any doubt as to status, they should be treated as civilian. Article 43(3) of the Protocol treats the police force as civilian unless they are incorporated in the State’s armed forces and the other Parties to the conflict are informed of this. This position is supported by the Council of Europe on the basis that “in case of wars and occupation members of the police force should continue to carry out their role of protecting persons and property in the interests of the civilian population, and should therefore not have the status of combatants.”
Palestinian police officers were present at the demonstrations to maintain order. The documented evidence shows that at every clash-point the police sought to contain the demonstrations by preventing demonstrators from approaching Israeli checkpoints, military positions, and Israeli settlements. The Palestinian Centre for Human Rights has documented a number of cases in which Israeli forces fired on Palestinian police while the Palestinian police were attempting to control civilian demonstrators.
It is necessary to compare facts of military capabilities and objectives of the Palestinian police and the Israeli military in the clashes. Israeli armed forces have a full military mandate. They occupy well-fortified military installations at strategically placed vantage points around settlements and borders. They are well-armed with up-to-date weaponry and carry automatic rifles as standard; they employ snipers and wear bullet-proof clothing as standard. They carry riot gear as a matter of course (tear gas and baton rounds); they have access to heavier weaponry, such as .5 calibre machine guns and artillery, such as tanks and Huey Cobra Gunship helicopters.
In contrast, Palestinian policemen have a limited and civil mandate. While they have access to automatic rifles, they are not carried as standard, nor is bullet-proof clothing. At the points where the clashes took place the Palestinian police were not in well-fortified military installations as advantageous vantage points, without sniper capability.
The objectives of the Israeli forces contrasted with those of the Palestinian police. Israeli forces have a legitimate right as occupying forces to quell the rioting and demonstrations of the Palestinian civilians, but must do so with proportional force. It is difficult to argue, given the exigencies of the situation, including the considerable distance of demonstrators from military installations and settlements and the fact that Israeli military were well-armed, while they were faced with lightly armed Palestinian police and unarmed civilians, that they were acting in self-defence.
The objectives of the Palestinian police were initially to quell the demonstrations and then to defend the demonstrators and themselves against Israeli fire. As Israeli soldiers initiated the shooting the response of the Palestinian police was defensive, and as such legitimate as long as it was proportional. Given the exigencies of the situation, it can be concluded that the force they employed was not excessive. The extent of the force employed by the Palestinian police is defined by the defensive objective.
The use of armed force even against legitimate military targets must at all times be commensurate with the principles of proportionality, discrimination and necessity. As Israeli soldiers initiated fire against Palestinian police officers, who were at the time civilian non-combatants, they violated the cardinal rule against making civilians military targets. Once the Palestinian police returned fire they became legitimate military targets, but the Israeli forces could use only force that was necessary and proportionate to the military objective. It is unclear what that response could have been as the Palestinian police were actively trying to quell the demonstrators and were not firing at Israeli targets. Israeli soldiers should have discriminated between Palestinian police combatants and Palestinian civilian non-combatants. In addition, force must not be used even against the combatant police officers which could have caused excessive incidental loss of civilian life, injury to civilians or damage to civilian objects.
The reasoning in humanitarian law is “that capture is preferable to wounding an enemy, and wounding him better than killing him; that non-combatants shall be spared as far as possible; that wounds inflicted be as light as possible, so that the injured can be treated and cured; that the wounds cause the least possible pain”. Thus methods and weapons used against military targets must cause the minimum suffering and destruction.
Palestinian police had a right to act in self-defence. Firstly, on the basis of their inherent right to self-defence; and secondly, on the basis of their obligation to protect the lives of the Palestinian people in respect of whom as law enforcement officers they have such a duty. This right and duty are contained in Article 3 of the Universal Declaration on Human Rights and Article 6 of the International Convention on Civil and Political Rights.
Although this defensive use of fire by the Palestinian police caused the death of Israeli military personnel, it was in accordance with the norms and principles of international law. As combatants, Israeli military personnel are legitimate military targets and their deaths were not unlawful. Death and injury to Israeli military personnel were incurred after Israeli soldiers opened fire on the demonstrators. The arbitrary and excessive use of force by Israeli forces put the lives of all individuals in the area in danger, such that the Palestinian police forces fired in legitimate self-defence.
The Palestinian Centre for Human Rights collated specific evidence of Palestinian police officer movement and activities surrounding the events in Gaza on 26th and 27th September 1996. Firstly on 26th September, there were no irregular movements nor weapons deployment in the Palestinian police force, indicating that Palestinian police were not involved in organising or inciting any of the events which took place on 26th September. Palestinian police have been deployed in areas specified in signed agreements since the arrival of the PNA in May 1994, and no incidents in which Palestinian police fired upon or otherwise threatened Israeli forces have been reported. On the contrary, Palestinian police have reportedly extended their full cooperation in maintaining security in the Occupied Territories and participating in joint patrols with Israeli troops. No Palestinian was wounded or killed by Palestinian fire during the clashes. Medical reports confirm that all bullets extracted from the dead and wounded were from the automatic assault rifles, or the larger .5 calibre automatic weapons used by the Israeli army.
Armed Force Employed by Israeli Settlers Against Palestinians
According to eyewitness accounts gathered by PCHR, Jewish settlers fired upon Palestinian demonstrators at Erez Checkpoint and Kfar Darom settlement with live ammunition. These accounts are confirmed by the statement of a senior Israeli officer, published in the Israeli daily Ha’aretz on 30th September 1996. The officer stated that settlers and Israeli soldiers had shot at Palestinian demonstrators indiscriminately, and that this had been the main cause for the escalation of violence in the Gaza Strip when the situation might otherwise have been contained. Israeli settlers are generally well-armed, often carrying a variety of weapons including automatic rifles.
It is apparent from the documented evidence that at no time did the Palestinian protesters present any significant threat to the lives or property of the settlers, wlive in well-fortified compounds, behind high electrified and barbed fences and surrounded by hundreds of well-armed Israeli soldiers. As it was not in self-defence, the use of fire power by Israeli settlers was without legal justification and therefore constitutes a criminal act.
Responsibility for Grave Breaches
In Article 146 of the IV Geneva Convention, which relates to the list of grave breaches violations of Article 147, states:
“Each High Contract 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”.
Israel must, then, as a High Contracting Party to the Convention bring to trial those responsible for the killings and injuries of Palestinians during the September 1996 clashes.
This is supplemented by Article 148 of the Convention which states:
“No High Contracting Party shall be allowed to absolve itself …. of any liability incurred by itself …. in respect of grave breaches referred to in the preceding Article.”
This article ensures that Israel cannot excuse its responsibility for bringing to justice those who have committed grave breaches. Whilst it continues to fail to do so, it is violating the articles of the Fourth Geneva Convention and liable as such.
Rules of Engagement in the Interim Agreements
The Interim Agreements contain provisions for cooperation and joint security activities, dispute resolution, and rules concerning military engagement. It is evident that these were disregarded by Israeli military during the clashes.
According to the rules of engagement contained in the Taba Agreement Annex I, Article XI(3), Israeli forces may carry out engagement steps in cases where an act or incident constitutes a danger to life or property. Such engagement must be aimed at preventing or terminating such an act or incident. Any action taken by the Israeli authorities must be taken with a view to transferring continued handling of the incident to the Palestinian police. Paragraph (3d) of the Article prohibits the use of firearms except as a last resort and after firing shots into the air has failed to be effective; shots fired should then not be directed at the killing of perpetrators, but for purposes of deterrence and apprehension only. The use of firearms should cease as soon as the danger has passed.
It is evident that Israeli soldiers did not follow these rules and, in fact, completely disregarded them to the extent that they were firing on Palestinian police officers who were attempting to quell the demonstrations.