by Maurice Hirsch, Adv.
The goal is to deceive the world into believing that international law recognizes the Palestinian terrorists as legitimate soldiers in combat.
Palestinian officials and many Palestinian/pro-Palestinian NGOs and others consistently refer to the terrorists and murderers arrested by Israel as “Prisoners of War” (POWs), claiming that the Third Geneva Convention of 1949 Relative to the Treatment of Prisoners of War (GCIII) should be applied to them. Their goal is to deceive the world into believing that international law recognizes the Palestinian terrorists as legitimate soldiers in combat.
To achieve their goal, both the Palestinian officials and the NGOs refer to different provisions in GCIII, assuming that the inherent bias against Israel will prevent even the most balanced of audiences from actually reading the provisions of the convention.
While Palestinian Media Watch has extensively documented and exposed the claims of the Palestinian officials, just recently, referring to the escape and recapture of six Palestinian terrorists, the PA Minister of Justice once again repeated the claim that the terrorist escapees enjoy the protection of GCIII, as if they are POWs and that these terrorists should not be prosecuted by Israel for their escape:
“[PA] Minister of Justice Muhammad Shalaldeh said that according to Article 91 of the Third Geneva Convention, the escape of the six prisoners is considered successful … and they must not be held accountable and put on trial before Israeli courts. He noted that this is a text that obligates the occupying power and that it must respect and implement it, but what Israel is doing against them constitutes an outrageous violation of the principles of international humanitarian law and international law in general.”
[Official PA daily Al-Hayat Al-Jadida, Sept. 20, 2021]
The question that must be asked is: Does the GCIII truly apply to Palestinian terrorists and murderers arrested by Israel and should they be seen and treated as POWs?
The short answer to this question was provided by the former Palestinian Authority Minister of Prisoners’ Affairs, Ashraf Al-Ajrami, under cross examination in 2018 by Palestinian Media Watch’s Head of Legal Strategies, Maurice Hirsch. After much hesitation, Al-Ajrami finally admitted that of the thousands of terrorists arrested or held in prison during his tenure as the Minister of Prisoners’ Affairs "perhaps fewer" than 5 fit the legal definition of being a POW:
PMW Head of Legal Strategies Maurice Hirsch: "Does the Palestinian Authority view the murderer prisoners, as Prisoners of War? If they are soldiers and are captured by the other side that's called a prisoner of war, no?"
Former PA Minister of Prisoners and Released Prisoners' Affairs Ashraf Al-Ajrami: "Listen, that's a definition from Geneva Convention Number 3. It defines what a prisoner of war is, or what that is- also Geneva Convention Number 4 from 1949 (sic., the Fourth Geneva Convention does not define prisoners of war, it deals with civilians in war zones). In the Palestinian Authority they say that the Palestinian prisoners are prisoners of war, but I was [the PA] minister [of Prisoners' Affairs] and I know - I was also a prisoner myself - I know the difference between Convention Number 3 and Convention Number 4. Number 3 says that if you capture someone who has a uniform-"
Jerusalem District Court Vice President Judge Moshe Drori: "The Third Convention is the Prisoners of War Convention, the Fourth Convention is during wartime. Sir, you are not correct."
Judge: "Because aside from having a weapon he (i.e., the prisoner of war)... intended to observe the rules of warfare. That is an additional condition; you simply did not say it."
Al-Ajrami: "Yes, yes, I didn't finish, okay. Therefore [there are] also those who perhaps some of them will be defined as prisoners of war and some not. But the large part of them are actually political prisoners-"
Judge: "One moment, I simply didn't understand. You were the Minister of Prisoners' Affairs; what was the largest number of prisoners during your time - 2,000, 3,000, 10,000, how many were there?"
Al-Ajrami: "Twelve thousand."
Judge: "Twelve thousand. Of them, how many people carried out an attack while wearing a uniform and openly having a weapon? (i.e., conditions for being recognized as a POW) Ten? Five?"
Al-Ajrami: "Fewer perhaps."
Judge: "How many?"
Al-Ajrami: "I don't know."
Judge: "Excellent. Let's say 10 out of 12,000. So 11,900 (sic., 11,990) are not prisoners of war?"
Al-Ajrami: "No, certainly not."
Judge: "So they are not prisoners of war?"
Al-Ajrami: "According to the international definition no."
[Excerpt of Jerusalem District Court protocol, civil suit 3367-09, Feb. 7, 2018]
The Palestinian/pro-Palestinian NGOs
Following the escape of the Palestinian terrorists from Israel’s Gilboa Prison at the beginning of September 2021, the Palestinian NGO Al-Haq also weighed in on this subject, publishing a tweet in which it claimed that if the terrorists were re-arrested they would be “liable only to disciplinary punishment” that “shall in no case exceed a maximum of 30 days.”
Since it is widely and internationally accepted that prisoners who escape from prison are committing a criminal offence and would clearly be subject to the full force of the regular criminal justice system, why, as suggested by Al-Haq, would Israel be limited to imposing only a disciplinary punishment upon the terrorists?
The answer to this question is found in article 92 of GCIII, which provides that a POW who carries out an unsuccessful escape attempt “shall be liable only to a disciplinary punishment.” Article 90 of GCIII imposes the 30-day punishment limitation.
So when Al-Haq claimed that Israel would be limited in its punishment of the recaptured Palestinian terrorists, it was inherently and falsely assuming the application of GCIII. According to Al-Haq, were Israel to breach the fake requirements, it would be committing a “war crime.”
In this manner, the Palestinian NGOs invent and spread false claims that Israel systematically breaches international law with the goal of demonizing and criminalizing Israel and its actions.
Despite the fact that Al-Haq consistently promotes false claims against Israel, it enjoys widespread international support, with donors that include the European Union, Norway, Denmark, Ireland, Italy, France, Spain and Germany
Nonetheless, the argument that the Palestinian terrorists and murderers are POWs and that when Israel prosecutes them for their crimes, Israel is allegedly committing a “war crime,” is nothing more than a hoax, however sophisticated it may be.
The following is a more extensive explanation as to why GCIII is completely irrelevant when discussing the Palestinian terrorist prisoners.
GCIII only applies to “international armed conflicts”
The first basic, but fundamental, reason to argue that GCIII does not apply to the Palestinian terrorists is that the conflict between Israel and the Palestinians is not an “international armed conflict.” An “international” conflict requires the existence of two or more warring states. Since a “State of Palestine” has never existed, it follows that Israel cannot be involved in an “international armed conflict” with a ghost state.
In the aftermath of World War I, the international community met, in 1920, in San Remo, Italy, to reaffirm and adopt the Balfour Declaration. In the meeting, the international community decided to allocate the entire area of Israel today, including Judea, Samaria and Gaza for the creation of a Jewish State. That decision was then reaffirmed by the 1922 League of Nations Mandate for Palestine. While the 1947 UN Partition Plan had the potential to create a new reality by establishing a new Arab state alongside a new Jewish state, the plan was entirely rejected by the Arab countries who thereafter tried to obliterate the nascent Jewish state.
Judea and Samaria, were then (1948) occupied by Jordan, which, for the first time in history, renamed the area calling it the “West Bank.” Even though Jordan tried to officially annex the area, the move was rejected by the international community. The Gaza Strip was occupied, at the same time, by Egypt. During the period of Jordanian occupation of Judea and Samaria and the Egyptian occupation of Gaza, between the years 1948 and 1967, no “State of Palestine” was established.
While the 1967 Six Day War was fought, inter alia, between Israel, Egypt and Jordan, since 1979 Israel is at peace with Egypt and since 1994 Israel is at peace with Jordan. At no stage in history was Israel engaged in an international armed conflict with the nonexistent entity called the “State of Palestine.”
Accordingly, the first obstacle to the application of GCIII is the fact that no “international armed conflict” exists between Israel and the Palestinians.
Who is a POW according to GCIII?
Even if one were to concede that the Israeli-Palestinian conflict is an “international armed conflict”, this would still not support the false claim of the Palestinian leaders and the NGOs.
Article 4 of GCIII provides an exhaustive list of persons who, upon capture, are entitled to the status of a POW. The Palestinian terrorists arrested by Israel do not meet any of the requirements. While article 4 covers different situations, the first two provisions of the article are the most relevant for this analysis.
The first basic category (Art. 4(1)) is that the person captured must be a member “of the armed forces of a Party to the conflict.” Since the Oslo Accords - the generic name given to the series of peace agreements concluded between Israel and the Palestine Liberation Organization (PLO), and which formed the basis for the establishment of the Palestinian Authority - prohibit the PA from having “armed forces” of this nature, it would follow that the terrorists are not part of the “armed forces” of the PA.
Even if one were to take into account that many of the terrorists were indeed members of the PA Security Forces, most of the terrorists arrested are not part of an organized framework, but rather members of terrorist cells, often affiliated with one or more of the internationally designated Palestinian terror organizations such as Hamas, the Popular Front for the Liberation of Palestine (PFLP), Palestinian Islamic Jihad, and Fatah’s Al-Aqsa Martyrs’ Brigades.
While article 4(2) includes certain “militias” as persons who, when captured, are entitled to the status of POW, this provision too, is of no assistance to the Palestinian terrorists.
According to the section, in order for the members of these militias to earn the POW status, they are required to meet four cumulative conditions:
1) They must be “commanded by a person responsible for his subordinates.”
2) They must have “a fixed distinctive sign recognizable at a distance.”
3) They must carry “arms openly.”
4) They must conduct “their operations in accordance with the laws and customs of war.”
The Palestinian terrorist organizations neither have the hierarchical structures that provide for commander responsibility for the actions of his subordinates nor the necessary internal disciplinary rules to meet the requirements of the first condition. Similarly, the Palestinian terrorists do not consistently wear a distinctive emblem that distinguishes them from the rest of the civilian population and certainly do not carry their arms openly. Finally, there is no basis whatsoever to claim that specifically and indiscriminately targeting Israeli civilians is an action performed in accordance with the laws and customs of war.
Accordingly, since the Israeli-Palestinian conflict cannot truly be considered to be an international armed conflict and since the Palestinian terrorists do not meet the basic requirements of GCIII in order to earn the POW status, there is no reason to demand that Israel accept the terrorists as POWs.
In its essence, the claim that Israel should treat Palestinian terrorists and murderers as POWs is a two-fold abomination. Firstly, it implies that Palestinian terrorists - the Palestinian “soldiers” - are entitled to legitimately and intentionally target Israeli civilians, an action prohibited for every other army in the world. Secondly, it demands that Israel be held to a different standard than any other country in the world.
Do the 1977 “Additional Protocols” to the Geneva Conventions alter the situation?
Since the Palestinian leaders and the NGOs specifically invoke the protection of GCIII, which clearly does not apply, it would be inappropriate to conclude this discussion without addressing the “Additional Protocols.”
In 1977, the international community again addressed the subject of warfare and protections needed for both civilians and “combatants.” The product of these discussions were two “Additional Protocols”: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (commonly referred to as AP I); and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (commonly referred to as AP II)
While AP II focuses on non-international conflicts, and does not contain any provisions related to the status of POWs, AP I focuses on international conflicts and contains a number of potentially relevant provisions.
While GCIII particularly focused on traditional “armed forces”, it is widely recognized that AP I intended to broaden the definition of “combatants” to include “guerrilla forces” – a term that could potentially apply to Palestinian terrorists.
In order to potentially grant additional protections, article 44 of AP I relaxed two of the criteria for “combatants” to achieve the POW status. According to the new provision, violation of “the rules of international law applicable in armed conflict” is no longer grounds to deny a “combatant” POW status. Similarly, the new provision amended the requirement that the “combatants” carry their arms openly.
The amended provisions are still of no assistance to Palestinian terrorists for at least three cardinal reasons.
Firstly, AP I only applies to an “International armed conflict.” As explained above, the Israel-Palestinian conflict cannot genuinely be categorized as such, and therefore the AP I and its provisions are irrelevant.
Secondly, while the Palestinians and their supporters would point to article 44 to justify their claims, they ignore the provisions of article 43 of AP I. As opposed to the relaxations contained in article 44, article 43 of AP I still requires that the “combatants” be part of a “command responsible to that Party for the conduct of its subordinates” and that those forces be “subject to an internal disciplinary system.” The Palestinian terrorists groups and members do not adhere to this elementary standard.
Finally, while the provisions of GCIII are accepted to reflect “Customary International Law” – i.e. binding international law widely accepted by most states, who also act in accordance with the provisions – AP I has not achieved the required level of international consent and application, and is therefore, not considered to be inherently binding.
While the Palestinians and their supporters often claim that Palestinian terrorists are legitimate combatants who, upon arrest, are entitled to the status of POWs in accordance with GCIII, this claim has no basis whatsoever.
The POW status is defined in GCIII. The examination above of GCIII and its provisions demonstrates why even the former PA Minister of Prisoners’ Affairs Ashraf Al-Ajrami admits that Palestinian terrorists are not POWs. Asked to clarify how many of the imprisoned Palestinian terrorists are legally and lawfully entitled to enjoy POW status, Al-Ajrami was forced to concede that of a potential of 12,000 prisoners, less than 5 would legitimately have been entitled to be seen as POWs.
The reasons for this are numerous.
First and foremost, since GCIII only applies to “international armed conflicts” and since no such conflict exists between Israel and the Palestinians, there is no general basis to invoke the application of GCIII.
Additionally, examination of the provisions set in GCIII to warrant the POW status shows that the Palestinian terrorist groups do not meet the required conditions. The terrorists do not belong to hierarchical bodies in which commanders are responsible for the actions of their subordinates or in which there are disciplinary
Maurice Hirsch, Adv.