Letter to Prime Minister Ariel Sharon
The ICJ sent the following letter to the Prime Minister of Israel.
January 31, 2002
The International Commissions of Jurists (ICJ), an international non-governmental organization committed to upholding the rule of law, is deeply concerned by the increasing practice of house and property demolitions in the Occupied Palestinian Territories. Such acts appear to be part of a systematic policy pursued by the Government of Israel and as such they constitute a violation of international humanitarian law as well as of international human rights law.
As affirmed in many statements by the International Committee of the Red Cross, guardian of the Geneva Conventions, as well as in a number of resolutions adopted by the United Nations General Assembly and Security Council, which reflect the view of the international community, the Geneva Convention Relative to the Protection of Civilians Persons in Time of War of August 12, 1949 (the Fourth Geneva Convention) is applicable de jure to the territories occupied since 1967 by the State of Israel. This Convention was ratified by Israel in 1951. Without being concerned with the legitimacy or otherwise of the occupation, it grants protected status to the civilian population of occupied territories (Article 4), and provides that no agreement concluded between the authorities of the occupied territories and the Occupying Power shall affect this protected status (Articles 7 and 47). Therefore, the Convention is fully applicable and relevant in the current context of violence. As an Occupying Power, Israel is also bound to abide by other customary rules of international humanitarian law concerning occupation as they are expressed in the Regulations annexed to the Hague Convention IV Respecting the Laws and Custom of War and Land of October 18, 1907 (1907 Hague Regulations).
The ICJ expresses its heartfelt sympathy for the innocent Israeli victims of recent bomb attacks in the city of Jerusalem, and condemns all bomb attacks by Palestinian individuals or armed groups against Israeli civilians. These attacks constitute a violation of a fundamental principle of international humanitarian law. It also recognizes the right of your Government to protect innocent civilians. This right, however, must be exercised in accordance with international law. The use of force against unarmed Palestinian civilians and the destruction of their homes and property by Israeli armed forces are not consistent with Israel’s obligations under the same law.
Both the 1907 Hague Regulations, recognized as declaratory of customary international law by the International Military Tribunal at Nuremberg in 1946, and the Fourth Geneva Convention presume that an occupied population will resist, including by the use of violence. The purpose of the law is to protect the civilian population under occupation including by limiting the conduct of the occupier in responding to violent resistance. Such limitations are not currenty observed by Israel.
Article 50 of the 1907 Hague Regulations provides that “[n]o general penalty… shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible”. Such prohibition is reaffirmed in even more clear terms in Article 33 of the Fourth Geneva Convention, whereby “[n]o protected person may be punished for an offence he or she has not personally committed. Collective penalties… are prohibited”. The provisions of Article 5 and Articles 64 to 68 of the Fourth Geneva Convention reinforce the meaning of Article 33 by clarifying that hostile acts directed against the occupier are acts committed by individual persons, which must be punished individually.
The prohibition of collective punishment embodied in the Fourth Geneva Convention and in customary international law constitutes the corollary of one of the basic principles of the rule of law, i.e. that penal responsibility is personal in character. This fundamental principle, applied to the situation in which an Occupying Power is faced with acts of violence carried out by individual members of the occupied population, implies that, since responsibility for those acts is personal, the occupier cannot inflict penalties of any kind on persons or entire group of persons who have themselves not committed the acts complained of. Obviously, the Occupying Power retains the right to punish those individuals who have committed such acts, in accordance with general principles of law.
The most recent house demolition by Israeli armed forces in the Rafah refugee camp, carried out after the attack by Hamas on a military post inside Israel in early January, has left almost 2,300 civilian people homeless. These people, the majority of whom are women and children, have been forced to abandon their houses and belongings overnight without warning. Some of them have been killed or wounded as their homes were destroyed. Considering the circumstances and the particularly violent manner in which house demolitions have been conducted, as well as the large number of Palestinian civilians who have suffered the consequences of such acts, the destruction of Palestinian homes by Israeli armed forces constitutes an act of collective punishment in violation of Article 33 of the Fourth Geneva Convention and of a well-established principle of customary international law.
According to both the 1907 Hague Regulations (Article 46) and the Fourth Geneva Convention, private property situated in occupied territory must be respected. In particular, Article 53 of the Fourth Geneva Convention prohibits “[a]ny destruction by the Occupying Power of real or personal property” owned privately or collectively by protected persons. Such prohibition is not absolute, an exception being provided for cases “where such destruction is rendered absolutely necessary by military operations”. This provision must be read in conjunction with Article 147 of the Fourth Geneva Convention, which includes among the “grave breaches” of the same Convention, “extensive destruction… of property, not justified by military necessity and carried out unlawfully and wantonly”. The most recent demolition of Palestinian homes in the Gaza Strip by Israeli Defence Forces, being carried out in an entirely civilian residential area where no shooting by Palestinian gunmen had been reported for days prior to house destruction, does not appear to have been justified by imperative military necessity. As such, it is contrary to Article 53 of the Fourth Geneva Convention and amounts to a serious violation of international humanitarian law.
The practice of house and property demolition pursued by the Government of Israel in the Occupied Palestinian Territories appears to be also contrary to certain obligations set forth in a number of international human rights treaties to which Israel is a party. These treaties continue to apply to the current situation in addition to international humanitarian law. In particular, I would recall that, as recently as November 2001, the United Nations Committee against Torture stated that house demolitions may amount to cruel, inhuman or degrading treatment in violation of Article 16 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Furthermore, by destroying their houses or rendering them uninhabitable, Israel is preventing hundreds of Palestinian men, women and children living in the Occupied Territories from enjoying their right to adequate housing under Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights.
The ICJ encourages you to do everything in your power within the bounds of the law to ensure the protection of the civilian population in both Israel and the Occupied Palestinian Territories. It believes that restoring respect for human rights and international humanitarian law in those territories is the best way to achieve this and the only way to break the spiral of violence which has already caused so much suffering to too many innocent people.
Please accept, Your Excellency, the assurance of my highest consideration.