Part III - Shielded from scrutiny: IDF violations in Jenin and Nablus
AMNESTY INTERNATIONAL
Report 4 November 2002
'Amid Muhammad Abu Sa'ir
Military operations in and around Nablus continued after Operation Defensive Shield and every week IDF soldiers killed Palestinians, often as a result of random and disproportionate use of lethal force. For example, on 17 May 2002 a tank round killed seven-year-old 'Amid Abu Sa'ir who was with his father on his way to Friday prayers. Father and son were both shot while sheltering behind a door in the passage leading to their house. According to eyewitnesses two IDF tanks fired in response to several boys aged between eight and 13 who were on the main Askar Road and were throwing stones at the tanks. No gunfire was reported at the time.
The Israeli authorities have failed to initiate independent, impartial and thorough investigations into the killing of 'Amid Abu Sa'ir or the injury, during the same incident, of eight-year-old Ya'qub Yusuf al-Bishawi, who is now partially paralysed after he was hit by a shot from one of the IDF tanks while he was playing marbles near his grandfather's house nearby.
Compelling Palestinians to participate in military operations and to act as "human shields"
In Nablus, as in Jenin, the IDF frequently compelled Palestinians to participate in military operations, including as "human shields". The IDF compelled Palestinians to scout areas to ensure safe passage of soldiers, to enter the homes of other Palestinians during military operations and as a first person through "mouse-holes" (the holes drilled through house walls by the IDF to enable them to move from house to house).
Maher Muhammad Hassan Salim
Maher Salim, 45, was at home with his family in the early hours of 6 April. According to his statement, at approximately 1.30am, he heard banging coming from the neighbour's house. He knew the neighbours were not at home. When he heard noises coming from upstairs, he suspected that the IDF were trying to enter his home. After half an hour had passed, five IDF soldiers came into his home by the kitchen. They broke down a door in the guest bedroom and then came into the bedroom where he, his wife and children had been sleeping. Keeping their guns pointed at him the soldiers instructed him and his wife and their seven children aged six to 19 to raise their arms and to accompany them into the room next door. They were told to sit down. Meanwhile he could hear the soldiers going through the rooms of his house and the sound of windows breaking. After two hours the soldiers came back and told him that they were leaving and instructed the family to remain in the room.
The next morning the soldiers returned to Maher Salim's house. This time, there were approximately 20-25 soldiers with two dogs who came in through a "mouse-hole" in the wall. The soldiers instructed Maher Salim to accompany them:
"The soldiers asked me about a certain door, it was one that led to an alleyway. They told me to open the door on both sides. They told me to look both up and down the alleyway and to let them know if there were any fighters. They threatened to shoot my family if I were to lie. I was then asked about another door that was just across the street from us. I told them it was the shop of my neighbour. They told me to go and open the door. I tried but it was locked. The soldier told me to come back and within a few seconds, the soldier fired two rounds at the lock. He told me to go back and open the door and to look inside. He asked me what was inside and I told him 'wood'. He called me back and then grabbed me by the collar of my shirt and held a gun at my back. We walked toward the shop. He was walking behind me. When we entered the shop, he called the rest of the soldiers.
"At that point he saw a car parked in front of my house. He asked me how long it had been there and I said 'about 10 days'. He asked me if it was my car and I said 'no'. He threatened to shoot my family if I were lying. I could see wires coming from the bottom of the car and then soldiers told me to go back to the house. Within about a minute, I heard an explosion. When I entered back into my house, there were soldiers on the stairs. They kept me on the stairs with them. Shortly after the explosion, another soldier came back and told me to come with him. Again, he grabbed me by the collar and held a gun to my back. The soldier took me to my neighbour's house, about five metres away. It was now about 9am on Sunday. There were about 6-7 soldiers behind me. My neighbour saw me and shouted out my name. The soldier told me that if I said anything, he would shoot me.
"We entered my neighbour's house. The soldiers began to drill a hole in the wall that led to another house. I went with three soldiers and the dog through the wall into the next building. The soldier kept the gun positioned at my head. When we arrived in the next building, it was empty. It wasn't a house, just an empty building. The soldiers then opened a hole in another wall. This happened about six or seven times. In each case, when we passed from wall to wall and building to building, the soldiers always kept me in front of them.
"At the last place, there was an iron door. One of the soldiers opened the iron door and told me to go out. I pulled the door back and just as I was walking out, I heard shooting. The soldiers pulled me back from the alley and began to return fire. I was about one metre behind the soldiers. I was crouching down while they were firing. After about half an hour, I told the soldiers that I wanted to see an officer. He asked me why and I told him that I am sick and I need my medicine. The soldier gave me some Acamol and then told me that after another half hour, he would take me back. The medicine I needed was for my cough and a bronchial infection. After I took the Acamol, I was dizzy and collapsed. I don't know for how long I was unconscious. When I woke up, the soldiers told me, 'Okay, you can go now' but they told me that I could not leave my house or they would shoot me. They also told me to leave the main door to my house open."
Ghazi Kamal Abu Kishik
Ghazi Kamal Abu Kishik was compelled to accompany soldiers and to participate in military operations, which endangered his life. Furthermore, his family home was partially demolished with explosives.
Late in the morning of 7 April 2002 the IDF occupied the house of Ghazi Abu Kishik, a local news reporter. The IDF told Ghazi Abu Kishik that fighters had been seen coming from his house; he denied this and said that fighters had been in the alleyways around his home.
Ghazi Abu Kishik told Amnesty International:
"We live in a very old house that was built under the Ottoman Empire. When the IDF first came to the door, we rushed to open it so that they would not explode it, as I know they have done with others. I was in the house with my family and my brother and his family. There were about 12 children between 3-18 years, four women, my brother, and myself. When they entered the house they asked me where were the fighters? I told them there were no fighters. I had seen fighters in the passages below my house but they were never in my house. They said that I must tell them where the fighters were or they will demolish the house. I did not answer them. Within a few seconds, they brought a huge hammer. After that they opened a large hole in the guestroom wall and planted some dynamite in it. They took us out to the courtyard, and with a remote control they blew up part of the house. It was now about 12pm.
"I thought that after this they would go, but instead the IDF set up an operation in the neighbours house. After the explosion, the neighbour's house and my house had no divide. From my neighbour's balcony the IDF would have a view to the east. The IDF told us to go to one room and not to leave. We had no water, no electricity and no communications. We asked the soldiers through the bathroom window for coffee and water, they told me to shut the window. During the days the soldiers were in the house, they continued to fire from the house. I can understand Hebrew and I heard a soldier bragging that he had shot three Palestinians.
"On 7 April, the first day they occupied the house, the IDF came and told me to go and open the metal entrance door. It had been blocked by rubble from the blast. They gave me a hammer. I told them that if I were to try and open it, I was afraid the ceiling would collapse. One soldier replied to me that it was not his problem. I could hear shooting coming from the other side of the door and the soldier was firing from behind me as well. I was finally able to open the door. During this period I was so afraid.
"At the end of the four days, no one came and told us we could go. I didn't hear anything so I then threw some stones at the door and when they did not come, I finally went outside."
There is extensive damage to the home of Ghazi Abu Kishik. Two rooms are completely demolished. A third guest room is extensively damaged. Most of the interior furnishings were destroyed. Ghazi Abu Kishik said that an engineer from the municipality told him that the building was unsafe to live in. "This has had such an effect on my family", he said. "They were already refugees from Jaffa, now they have been made refugees twice over."
Torture and cruel, inhuman or degrading treatment of detainees
In Nablus the IDF ill-treated and sometimes tortured detainees arrested in mass roundups of males between 15 and 45 years old. The IDF made some loudspeaker announcements for males to report to the IDF (apparently on 10 April); in addition they carried out arrests of Palestinians through house-to-house searches once they had secured the old city. Released detainees interviewed by Amnesty International consistently alleged that they had been ill-treated by the IDF immediately after arrest. Those ill-treated or tortured included a paralysed man in a wheelchair.
Immediately after arrest detainees from Nablus said they were transported to Shomron temporary detention centre (known as Huwara to the Palestinians, a nearby village). Palestinians who had been detained reported that beatings continued in the detention centre. They said that the centre was overcrowded and they were given insufficient water, little food and were sometimes denied access to toilet facilities.
Palestinians detained in the IDF operation in Nablus between 3 and 21 April 2002 and then released at the Huwara checkpoint were placed at serious risk from IDF shooting as, until 21 April, a strict curfew was imposed on the city of Nablus, with only short periods in which the curfew was lifted. Detainees report that upon their release, they were given a release paper, which provided them with a limited window of opportunity, usually one day, to return to their home. As they walked home many detainees stated that the IDF soldiers shot in their direction. People who had been detained and released at the checkpoint said that they feared for their lives, as there was still heavy firing coming from the IDF, and those trying to pass into the old city were, on occasion, caught in the crossfire.
Muhammad Daraghmeh
Muhammad Daraghmeh lives in Nablus and is a reporter for al-Ayyam newspaper as well as for Associated Press. He told Amnesty International that on 16 April 2002 at about 3am, the IDF came to his neighbourhood and forced a neighbour from an adjacent building to go to each home and instruct all men over the age of 16 to go outside. Muhammad Daraghmeh went outside and was asked to produce his ID card. At this point the IDF told some of the residents to go back home and took others into custody. Muhammad Daraghmeh was among 20 men taken into custody. He described to Amnesty International what happened next:
"The soldiers bound our hands in front with plastic handcuffs. We were taken into APCs and IDF soldiers told us to keep our eyes to the ground. There were about eight other men with me. They took us to an apartment building in Rafidiyeh. When we reached there, we were blindfolded and told to sit on the stairs. From just under my blindfold I could see soldiers going up and down the stairs. I could also hear the sound of children on the upper floors and I assumed residents were still inside the building.
"We were kept there for three hours. We were told to keep our heads lowered and not to move At about 12pm, we were told to form a human chain with our hands and were put in a truck. There must have been about 50 men at this stage. We were driven about 11 kilometres to Huwara military base. When we arrived there, we were taken to an open place and told to sit. We were still blindfolded and still had our hands tied our personal belongings were taken from us. We were then taken into a tent. The soldiers told us not to speak to one another, and not to move the blindfolds from our eyes. There was a young man there, maybe 18 years old, who moved his blindfold a bit. I saw from below my blindfold a soldier approach the man and hit him on the head with a baton. Then a soldier came in and asked who could speak Hebrew. Someone raised his hand and the soldier told him to translate and asked us to repeat what he said. He said, 'Bring me humus', 'Bring me ful [beans]' and 'I like the IDF'.
"At this point, I needed to use the bathroom. I asked the soldier and he took me. When we reached the place, I asked him how I was meant to use the bathroom with my hands tied. He told me to just to do it in my pants, it wasn't his problem. I was taken back and remained in this place and in the same position until 11pm. At this point a soldier came and called my name."
Muhammad Daraghmeh was taken for questioning and then brought to the entrance of the base and told he could return home. He was given a release paper, which listed his name, ID number, the date he was detained and the date of release. There was heavy gunfire in the area at the time. He walked about two kilometres to Huwara checkpoint and after being stopped and questioned by the soldiers, he was allowed to pass. He was approximately 11 kilometres from his home at the other side of Nablus. He went about 200 metres from the checkpoint and decided to return back as there was gunfire all around him:
"When I returned to the checkpoint, one of the soldiers asked me what I was doing. I told him that I couldn't go any further; there was too much gunfire. The soldier said, 'So what? This is your city.' I then asked him if I could remain at the checkpoint and he said no, it is not allowed. I then asked him if I could go back to the detention centre. He told me no, it was not a hotel. I then told the soldier that the soldiers at Huwara said that I should come back if I had any problems. It was not true, but I said it. At about 2.30am, a military jeep came from the camp. The soldiers asked, 'Where is he?' The other soldier pointed at me. They told me to approach them and asked me what I was doing there. I told them that there was too much heavy gunfire for me to walk safely back home. One of the soldiers told me I could not remain there, as it was a controlled military zone. I then said that there was too much shooting up ahead. The soldier then said to me that I must go forward or he would be the one to shoot me. I then asked him what I should do if I came across a tank. He said to walk into the city with my arms raised, with my ID and release paper in my hand and to say in Hebrew, 'I was just released from prison'.
"I walked about 300 metres and came across two tanks. I kept my hands in the air and said the phrase about four times. I walked another 20 or so metres and came across another tank. I was in such a dangerous situation that I decided not to go any further. I began to look to my left and right for a house with lights on so that I could get out of the road and wait a bit until things calmed."
Muhammad Daraghmeh found a house and stayed for the night. The following morning he left and again tried to walk back to his home. He reached a second checkpoint just by Balata refugee camp and was stopped by soldiers. They questioned him as to why it had taken so long for him to reach this point (as the date and time of his release was marked on his release paper). When he tried to explain he was told to shut up. The soldiers made him sit on the ground with his head lowered and began to question him. When he told the soldiers he was a reporter, they began to ask him what he wrote about and his political views.
Muhammad Daraghmeh was delayed at the checkpoint for more than half an hour and then released. He began to walk toward the city and in the first house he saw, he telephoned members of the foreign press service, knowing that they would have the best chance to move freely around the city and might be able to reach him. Two journalists subsequently picked him up and brought him home.
Maher Musa Hussain al-Naqib
Twenty-five-year-old Maher al-Naqib is paralyzed from the waist down and confined to a wheelchair as a result of two gunshot wounds he received in 1994. He lives in 'Askar refugee camp in Nablus. On the afternoon of 16 April 2002, the IDF moved into Maher al-Naqib's neighbourhood and instructed a neighbour to come to the house where Maher al-Naqib's four sisters, his father, mother, sister-in-law and 8-month-old niece were staying. At the time of Amnesty Internationals interview with Maher al-Naqib there were visible signs of cuts and faint bruising on his lower leg and knees.
Maher al-Naqib told Amnesty International:
"When the soldiers entered the house they asked my father and me for our IDs. I gave them my ID along with another card, which shows that I am partially paralyzed. There were about 20-25 soldiers in the house at this time. One of the soldiers who kept speaking on a walkie-talkie was referred to as Amir … Once they checked the IDs they began to search the house, while some of the other soldiers stayed with us in the living room, moving us from side to side while they searched the room. During the search, they broke the cabinets, and made holes in the couch using their boots and some other tools they had with them. They were searching the living room for about four hours. After about two hours, they asked the family to stand. I said to them in Hebrew I could not stand and that I was paralyzed. The soldier said back to me, 'You are not paralyzed'.
"When I did not stand, three soldiers took me to my parents' bedroom and closed the door. When we reached the bedroom, they tried to lift me up under the arms. At the same time as they were lifting me, they were hitting me on the lower legs, hands, chest and back of my head using their hands and feet, as well as their rifles. We were in that room for more than half an hour. During this entire time, they kept telling me to stand and when I could not they would hit me. They finally flipped me over on to the floor and then began to kick me around the head and all over my body. This lasted for about five minutes. They then lifted me back up and put me in my chair. I had cuts on my knees and right thigh. When they put me on the chair, one of the soldiers was standing on top of the bed and had his rifle on my temple. He told me to stand up. I just kept telling them I could not stand.
"I was then handcuffed with a plastic tie and taken back to the living room. Amir then called another soldier and that soldier took me to the entryway of the house. There are some stairs that lead down to a courtyard and then to the street. The soldier pushed me down the stairs. I was unconscious."
When Maher al-Naqib regained consciousness, he found himself in his wheelchair in the boys' school in the camp. He was in a corner, away from the other Palestinian men who had been detained. He was taken by truck to Huwara detention centre, and said that soldiers pushed him off the truck, so that he fell on his back, hitting his head on the ground. He said during the period he was in detention in the camp, on five occasions he was taken by soldiers who would run, flip him over in the wheelchair and then have other detainees pick him up. At one time his shirt was removed and he was placed outside. He was not given any food, water or blankets and remained outside for two days. He was eventually moved into one of the tents. During the four days he spent in detention, he says he was given food only once. On 19 April, he was questioned and released. He was taken by a large jeep to Huwara checkpoint, along with some other detainees, and dropped off. The journey home was difficult, as the wheels on his chair were damaged. It took him three hours.
Blocking medical and humanitarian relief
During the conduct of Operation Defensive Shield in Nablus the Israeli authorities failed to respect the principles of medical neutrality and in so doing violated the right to life.
During the curfew, medical teams and ambulances were routinely prevented from access to the sick and wounded. From 3 until 8 April, no medical services were allowed to operate in the Nablus area. On the evening of 8 April, the IDF began to allow partial movement of ambulances and medical teams, requiring coordination between the ICRC and the DCO in order for ambulances to operate. This procedure was time-consuming and would invariably significantly delay the response to medical requests. Sometimes the IDF did not allow ambulances to respond to calls at all; even after authorization was given checkpoints often held ambulances up for hours, even when the patients inside were critically ill. The head of the PRCS in Nablus provided Amnesty International delegates with a log of calls that indicated significant delays in the medical teams' responses to emergencies. Palestinian medical personnel told Amnesty International that some patients were prevented from reaching the hospital for periods of 48 to 72 hours after their initial call for an ambulance.
According to the PRCS and the Union of Palestinian Medical Relief Committees (UPMRC), IDF soldiers shot at ambulances responding to calls on many occasions between 3 and 21 April. In addition, on at least four occasions the IDF stopped ambulances and required ambulance workers to remove their clothes. UPMRC staff told Amnesty International delegates that after stopping ambulances for two to three hours the IDF would usually tell the personnel to return to where they came from.
Firing at ambulances
Muhammad Ramadan Mahmud Saqa, an ambulance driver with the PRCS, said that on 8 April 2002, he and his partner attempted to respond to a call near the Kan'an soap factory. The response had been co-ordinated with the ICRC and had been delayed for one and a half hours whilst waiting for clearance. When the ambulance approached the western entrance of the city, there were large piles of rocks and debris, which prevented its movement. He and his partner physically cleared the first barrier and proceeded slowly, clearing debris as they went. When they reached the area just outside the factory, there was heavy gunfire in their direction. They shouted in both Arabic and Hebrew that they were from the ambulance service. They returned to the ambulance and the firing ceased. However, when they attempted again to try to remove the barriers on the approach to the factory, the firing resumed and they were forced to retreat. Shots continued to be fired toward the ambulance and they returned to base.
A nurse from the PRCS, Khaled Khalil, reported that his ambulance was fired upon on 25 April 2002, when responding to a call in the village of Salem (four kilometres from Nablus). He was unable to continue his journey.
Before the IDF incursions into Nablus, nine field hospitals had been set up in the Nablus area. The largest of these was in a mosque in the old city. Dr Muhammad 'Abd al-Muti Quraini, who was among the medical staff who set up a field hospital in 'Askar refugee camp, said that he was unable to travel safely to tend to patients in need of medical care. On one occasion, while responding to a critical injury inside the camp on 7 April, he was fired at by IDF soldiers. He said that between 3 and 19 April, he treated 175 patients who were unable to reach hospitals outside 'Askar refugee camp and that it was not until 21 April that ambulances could move safely in and out of the camp.
Hafez Sabreh and Suna Hafez Sabreh
On 7 April 2002 Hafez Sabreh, aged 65, a metalworker, was killed by a shot in the back while in the courtyard of his house in 'Askar refugee camp; his daughter, Suna Hafez Sabreh, 35, was shot and seriously injured in the same incident. Ambulances were unable to reach them and medical help was delayed. According to witnesses, there was no shooting coming from the area before the incident.
Manal Hafez Sabreh, 34, Hafez Sabreh's daughter, who was with her father at the time, told Amnesty International:
"Around 5pm on that Sunday, tanks came into 'Askar camp. … My sister Suna was standing by the metal door, which leads on to the road. My father was in the courtyard. I then heard shooting. I called on my father to take the children inside. There were about seven children all around him. He gathered them and went inside. I did not see him come out again.
"My neighbour Ahmad then yelled that Suna had been hit. Suna had just been closing the door when she said she felt something hit her head. At that moment, we did not realize my father had also been shot. We went into his room after about 10 minutes and saw that he looked very ill but we thought he had a heart attack.
"We called on a friend that worked close to a medical relief centre that had opened up in an empty house and asked him if he could make contact with a doctor, as we knew no ambulance could reach us. After about one hour, the doctor and some nurses came. The doctor provided Suna with some first aid and rang the PRCS for an ambulance. The ambulance tried to reach us on three occasions. When my brother called a final time, someone told him that on the third attempt to reach us, the ambulance had been shot at and turned back. The doctor examined my father. He had died."
By 9 April, Suna's condition had grown worse and the doctor decided that she needed an operation to alleviate some of the pressure in her lungs. The ambulance did not arrive until 1pm that day. She has since had five more operations.
Destruction of property and civil infrastructure
An inventory carried out by Nablus Municipality in conjunction with the Engineers Association and Nablus University indicates that during Operation Defensive Shield 64 buildings in the old city, including 22 residential buildings and 17 part-commercial part-residential buildings, were very badly damaged or completely destroyed, with a further 221 buildings partially damaged. There was additional, but less severe, damage to neighbourhoods outside the old city.
A number of religious or historical sites were partially destroyed or severely damaged in what frequently appeared to be wanton destruction without military necessity. They include: the Shaikh Musallam mausoleum, the Great Mosque, the Ottoman Sarail, the al-Fatimiyeh School, al-Khadra Mosque, the Merchants Khan (Khan al-Tujjar), the Greek Orthodox church, and al-Hammam al-Jadideh, an eighteenth century bathhouse. Three soap factories were also destroyed: the Kan'an, al-Nabulsi and Abu Shamat. There appeared to be no absolute military necessity for targeting any of these buildings. The oldest mosque in Nablus, the Jami'a al-Khadra (1187 AD) sustained extensive damage. The main prayer hall was completely destroyed and the western side of the roof collapsed. There has been no indication that any members of armed Palestinian groups were in or immediately around the mosque and therefore the military necessity of the destruction of this religious and historic site must be questioned. In the case of the Kan'an and al-Nabulsi soap factories, again serious questions must be raised as to the military necessity of demolishing these buildings. The head of the Greek Orthodox Church in Nablus, Father George 'Awad, whose church and living quarters faced the soap factories, told Amnesty International that the two days before the demolition of the factories on 10 April the area was quiet. He stated that the buildings were used solely as a warehouse for soap products and as offices and he had seen members of the IDF within the factory before the demolition. The Palestinian homes adjacent to the soap factories were also destroyed or damaged in what was a disproportionate use of force.
Six schools in Nablus also suffered damage from IDF action, ranging from minor exterior damage to partial destruction. Commercial properties, including 35 shops, were destroyed throughout the old city and in wider Nablus. Seven buildings were completely burned. Most notably, the Hindiyeh Building on the Balata Road to Nablus was burned and then demolished with explosives by the IDF on 4 April. The building housed four commercial offices and 11 residential units. At the base of the building there were 24 additional businesses. The IDF had previously occupied the building on 28 February for 15 days, during an earlier incursion into Nablus. The seven-storey building is now completely destroyed, leaving a number of families who lived there homeless and the total loss of all businesses. Both the location of the building and the fact that residents and eyewitnesses in the area maintain that there was no firing coming from either within the building or from around the building at the time of the destruction raise serious questions as to the possible military necessity for its destruction. Residents told Amnesty International that the IDF sent one of the residents from the building to knock from door to door to tell them to leave. They were given just 10 minutes to leave and there was no time to collect personal belongings.
Amnesty International obtained several testimonies which describe a pattern of destruction by IDF soldiers of the furnishings of houses, and looting of apartments during their occupation of apartments. 'Abd al-Rezaq Wasif Riyafa, who lives in the Qamhawi Building in Nablus, told Amnesty International that the IDF occupied his apartment for six days. When he returned he found that
"all the furniture had been damaged and the curtains had been torn down. The IDF had gone into each room and damaged some of the furniture and had ripped open couches and mattresses. They had ripped my wifes clothes and the baby clothes for the child my wife is expecting. They had burned the carpets, blankets and some of the mattresses."
He also said that his wifes gold jewelry that he had given her for their wedding, worth about 1700 Jordanian Dinars (JD, about $2,430), was also missing. Father George Awad told Amnesty International that items were missing from both the church and from his residence near the church including 2,000 JD (about $2,850), a stereo, and some small appliances.
The Legal Framework
International human rights and humanitarian law applicable in the West Bank and Gaza Strip
There are two sets of complementary legal frameworks that govern Israel's conduct in the Occupied Territories: international human rights law and international humanitarian law.
International Human Rights Law
International human rights law seeks to protect individuals at all times by limiting the power of the state over individuals, and requiring states to ensure, protect and respect individuals' human rights. International human rights standards include: those set out in treaties which are agreed by and between states; codified principles, including those set out in Declarations, Principles, Codes of Conduct, Rules and Guidelines, agreed by states (sometimes known as non-treaty standards); and principles that have become universally accepted by states and thus are considered customary international law and are therefore binding on all states.
Israel is a party to several international human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
As a party to the International Covenant on Civil and Political Rights (ICCPR), Israel has agreed and is obligated to respect, protect and ensure the rights set out in the treaties to all persons within its territory or subject to its jurisdiction.
Israel has argued that its obligations under international human rights treaties to which it is a party do not apply to persons in the Occupied Territories. The Human Rights Committee, the expert-body which monitors states' implementation of the ICCPR and issues authoritative interpretation of the treaty, and other treaty monitoring bodies, however, have stated that they do apply, and that Israel remains bound to ensure, respect and protect the human rights of all persons living in the West Bank and the Gaza Strip.(19)
Under certain human rights treaties, including Article 4 of the ICCPR, some rights may be suspended, in narrowly defined circumstances – including in times of public emergency which threaten the life of the state – to the extent strictly required by the situation.
The human rights which may not be suspended even during times of public emergency include, among others:
*the right to life
*the prohibition of torture and cruel, inhuman or degrading treatment
While Israel has suspended its obligations under Article 9 of the ICCPR, protecting the right to liberty and security of the person, the Human Rights Committee has made it clear that, in addition to the rights expressly set out in Article 4 of the ICCPR that are not subject to derogation at any time, there are other rights which may not be suspended.(20) These include:
*the prohibition of arbitrary detention
*the duty to treat all persons deprived of their liberty with humanity and respect for the inherent dignity of the human person
*the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention
*fundamental principles of the right to a fair trial, including the presumption of innocence and the right to trial before an independent impartial court
*the prohibition of collective punishments
Non-treaty human rights standards that are particularly relevant for the Israeli government's treatment of Palestinians are the UN Code of Conduct for Law Enforcement Officials (Code of Conduct); the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principles); the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles); and the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
In particular, failure by members of the IDF to adhere to the standards in the Code of Conduct and the Body of Principles have resulted in the excessive and disproportionate use of force and led to unlawful killing of Palestinians.
Article 2 of the Code of Conduct states that "In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons."
Article 3 of the Code of Conduct states: "Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. The commentary on this article clarifies that the use of firearms is considered as an extreme measure and states specifically that "Every effort should be made to exclude the use of firearms, especially against children."
Principle 9 of the Basic Principles states: "Law enforcement officials shall not use firearms against persons except in self-defence or in defence of others against the imminent threat of death or serious injury…and only when less extreme means are insufficient to achieve these objectives…In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life."
International Humanitarian Law
International humanitarian law, also known as the law of armed conflict, applies to situations of armed conflict and belligerent occupation. It aims to limit the effects of armed conflict and to limit human suffering, by regulating the ways military operations are conducted, including in occupied territories and by protecting people not or no longer actively participating in hostilities. The body of international humanitarian law consists of customary rules and general principles.
Israel is a party to the four Geneva Conventions of 1949, which are among the treaties which codify international humanitarian law.
Rules governing the conduct of an Occupying Power in occupied territories, aimed at protecting the population, are set out in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (the Fourth Geneva Convention).
Persons protected by the Fourth Geneva Convention are all those who "at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals"(Article 4).
The obligations of an Occupying Power to protected persons under the Fourth Geneva Convention include the duties to:
*Treat them humanely at all times and protect them from all acts or threats of violence (Article 27)
*Respect their persons, honour, family rights, religious convictions, practices and their customs (Article 27)
The Occupying Power must also:
*Ensure that the basic medical, and nutritional needs of the population are met (Article 55)
*Agree, ensure and facilitate relief if all or part of the population of the occupied territory is inadequately supplied, and permit free passage of consignments of food, medical supplies and clothing (Article 59)
*Ensure and maintain medical and hospital services, public health and hygiene in the occupied territory (Article 56)
*Ensure that medical personnel are allowed to carry out their duties and are respected and protected (Articles 56 and Article 20 and 21)
*Not destroy real or personal property of individuals, organizations or public authorities unless such destruction is "rendered absolutely necessary by military operations" (Article 53). Pillage is also prohibited (Article 33)
*Not carry out "individual or mass forcible transfers, as well as deportations of protected persons". The Occupying Power must not "deport or transfer parts of its own civilian population into the territory it occupies" (Article 49)
Protected persons may not be:
*Wilfully [unlawfully] killed, tortured, ill-treated, subjected to corporal punishment or suffer humiliating and degrading treatment (Articles 27 and 32)
*Punished for an offence he or she has not personally committed or subjected to collective punishments or reprisals against their persons or property (Article 33)
*Compelled by the occupying power to assist in military operations (Article 51), and cannot be used as "human shields" (Article 28)
According to international humanitarian law, persons who take direct part in hostilities may temporarily lose their status as protected persons, but they do so only for such time as they take direct part in hostilities. However, at all times they must be treated with respect for their humanity; if they are tried, their rights to a fair trial must be respected. In addition, all other of their applicable human rights must be respected.
While Israel is a party to the Fourth Geneva Convention, it maintains that this Convention does not formally apply to the West Bank and Gaza Strip.(21) In practice Israel has agreed to apply what it has termed "humanitarian provisions" of the Geneva Convention to the Occupied Territories although the definition of what constitutes humanitarian provisions is unclear. The ICRC, which works to ensure the application of international humanitarian law including as set out in the 1949 Geneva Conventions and their two Additional Protocols), as well as the other states which are parties to this treaty (known as High Contracting Parties), disagree with the Israeli government's view. The Conference of the High Contracting Parties to the Fourth Geneva Convention, which took place in December 2001, issued a Declaration which reaffirmed "the applicability of the [Fourth Geneva] Convention to the Occupied Palestinian Territory, including East Jerusalem" and reiterated the need for full respect of its provisions.(22) The position of the ICRC and the High Contracting Parties of the Geneva Conventions on the applicability of Israel's obligations under the Fourth Geneva Convention to the West Bank and Gaza Strip has been supported by numerous resolutions of the United Nations Security Council.(23)
Amnesty International considers that all Palestinians in the West Bank and Gaza are "protected persons" under the Fourth Geneva Convention. As noted above, Palestinians in the Occupied Territories who take direct part in hostilities temporarily lose their status as protected persons for such time as they take direct part in hostilities; at all times they must be treated with respect for their humanity. If tried, their rights to a fair trial must be ensured respected and protected, as must all of their other applicable human rights.
Amnesty International considers the frameworks of international human rights law and humanitarian law apply to the hostilities/events which took place in Jenin and Nablus in April 2002.
International law applicable to the fighting in Jenin and Nablus
There is considerable debate as to whether the violence in Israel and the Occupied Territories has reached a scale and intensity whereby the rules of international humanitarian law on the conduct of hostilities in international armed conflicts apply, and if so to what extent. It may be argued that military operations in Jenin and Nablus in April, in particular, reached the requisite threshold. In such situations, international humanitarian law sets out standards of humane conduct applicable to both state forces and armed groups. These rules are codified in Protocol I Additional to the Geneva Conventions of 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I). Protocol I applies to international armed conflicts including "armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their rights of self-determination" (Article 1 (4) of Protocol I).
Protocol I's provisions regarding the protection of the civilian population are regarded as norms of customary international law.
Protocol I affirms the customary rule that "the civilian population and individual citizens shall enjoy protection against dangers from military operations" (Article 51 (1)) and specifies rules to ensure such protection. The civilian population as well as individual civilians must not be the object of attack.
The principle of distinction in international humanitarian law ensures the respect for and protection of civilian lives. Article 48 of Protocol I codifies this fundamental rule of customary international humanitarian law, which is binding on all parties to armed conflicts:
"In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."
In addition to prohibiting direct attacks on civilians, international humanitarian law prohibits indiscriminate and disproportionate attacks. Indiscriminate attacks include those that fail to distinguish between civilians and those taking part in the hostilities and/or civilian objects and military objectives. They also include attacks, which although directed at a military target, are carried out without regard to the likely consequences for civilians. They can involve the use of methods or weapons which are not capable of hitting a military target with precision – either by their nature or as a result of the circumstances in which they are employed.
The principle of proportionality is also a fundamental rule of customary international law. Protocol I prohibits disproportionate attacks – those attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."(Article 51 (5) (b)).
In order to spare civilians and comply fully with the principles of distinction and proportionality, parties to a conflict must take necessary precautions in planning and carrying out attacks. Article 57 (2) specifies precautionary measures required:
"With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit."
The protection of civilians under international humanitarian law also requires all sides to remove civilians from the vicinity of military objectives and to avoid locating military objectives in or near densely populated areas. (Article 58 of Protocol I).
The fact that some people within the population are not civilians does not deprive the population of its civilian character and thus of its protection from direct attack (Article 50 (2) and (3), Protocol I). However, the presence of a protected person at a military objective does not, in itself, render it immune from attack; the use of civilians as "human shields" – in attempts to shield military objectives from attack or to shield military operations – is strictly prohibited. (Article 28 of the Fourth Geneva Convention and Article 50 (7) of Protocol I).
As specified in Article 51 (8) of Protocol I, the shielding of one side behind civilians does not absolve the parties from their obligations to respect and protect the civilian population, including taking precautionary measures.
Israeli officials have stated, including in meetings with Amnesty International, that in its operations in Jenin and Nablus the IDF strictly adhered to the principles of distinction and proportionality included in Protocol I. Amnesty International's examination of individual cases in Jenin and Nablus, however, suggests that the IDF failed to uphold these principles.
Accountability for violations of international law
International human rights treaties to which it is a party and the Fourth Geneva Convention require Israel to be accountable for violations of human rights and humanitarian law. Accountability includes the duty to promptly initiate independent, impartial and thorough investigations of allegations of violations and bring perpetrators to justice in the course of proceedings which meet international standards of fairness. Under human right law, victims of violations are entitled to redress and reparation – including compensation; rehabilitation; and satisfaction and guarantees of non-repetition; to this end Israel is required to ensure the availability of effective remedies.
For example, Israel is obligated to ensure effective remedies and redress for violations of the rights set out in the ICCPR. This duty carries with it the obligation to promptly initiate independent, impartial and thorough investigations into allegations of violations of the rights set out in the treaty, including the right to life, and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.
Both human rights law and international humanitarian law require other states to investigate and either prosecute or extradite to another state for trial persons suspected of certain crimes under international law and grave breaches of the Fourth Geneva Convention regardless of where the act took place.
The list of grave breaches of the Fourth Geneva Convention is set out in Article 147. These include the following acts committed against persons or property protected under the Convention: