A major casualty of the Gaza War has been international law. Lord Cameron’s reported threat of an arms embargo against Israel appears to be partly grounded in demands that the International Committee of the Red Cross (ICRC) be allowed to visit Hamas prisoners in Israel. The media has covered these demands in the context of “ensuring Israel’s adherence to international law”. But this is the opposite of what international law requires.
Mandated ICRC access to detainees arises in several contexts in international humanitarian law, none of which apply to the Palestinian terrorists detained by Israel.
The original concept of ICRC visits concerned access to Prisoners of War (POWs). This is the subject of the Third Geneva Convention and is well established in international law. Palestinian terrorists do not qualify as POWs. They are not members of regular armed forces, nor are they part of militias who conduct their operations in accordance with the laws and customs of war. They therefore cannot satisfy the definition of POWs under Article 4 of the Third Geneva Convention.
There is a reason why, when the Geneva Conventions were drafted, this was the definition of POWs that was agreed. The deprivation of this special status was to be an effective sanction against the modus operandi of terrorists and war criminals. The rights of POWs do not apply to members of Al Qaeda, Islamic State, Hamas, Palestinian Islamic Jihad and other terror groups. The ICRC’s insinuation that they do spells potential disaster for the very international legal order that that organisation is charged to uphold.
These provisions apply in the context of International Armed Conflict (IAC). However, the war in Gaza, as a cross-boundary conflict between a state and an armed group, may qualify as a non-international armed conflict (NIAC) in which the provisions mandating ICRC access to detainees under international humanitarian law do not apply. It is possible that the ICRC recognises this. It may explain their failure to use mandatory language to demand access to Israeli hostages or indeed their immediate release.
What it does not explain is the ICRC’s appalling treatment of the families of those held by Hamas, including claiming initially that they had no presence on the ground in Gaza. The ICRC has been criticised for being nothing more than an Uber service, conveying the hostages released in November. Its inaction is the subject of a legal case brought by families of the hostages.
The correct legal framework applying to terrorist detainees in Israel is clear. All detainees from Gaza held in Israel captured as part of the war are held in recognised detention facilities and are subject to Israeli law. The assertion by the ICRC that Israel ignores its legal obligations to its enemy is a blood libel. Detainees are held according to international standards, with oversight by the Israeli courts in the form of judicial review and stringent conditions. The ICRC’s misstatements on this serve the political posturing of officials around the world who vie to curry favour and leverage popularity on the basis of calling out Israel for invented breaches.
The sinister reality behind calls for ICRC access becomes clearer upon reports, including in the Jerusalem Post, of the ICRC’s complicity in facilitating salaries for terrorists under the Palestinian Authority’s “pay for slay” policy. The stipends paid by the Palestinian Authority to Palestinian terrorists charged with committing atrocities against Jews rely on ICRC documentation, which stipulates how the money should be paid.
The ICRC’s denial of complicity does not sit so comfortably with a recent report by Palestinian Media Watch. The Palestinian prisoner affairs chief, Qadura Fares, who is responsible for the “pay for slay” payments, is quoted as describing the ICRC as “an essential partner in the process that enables payment to imprisoned Palestinians”, and lamenting that the current lack of access by the ICRC to detainees is hampering the payment process.
What an indictment of the “independent neutral organisation looking to provide humanitarian assistance to victims of armed conflict” and of those who demand ICRC access to detained terrorists from Gaza. These distortions of international law spell danger for all states that contend with the threat of Islamist terrorism. In the interests of law-abiding states all over the world, there should be a wholesale inquiry into the activities of any international organisation suspected of lending support to terror.
Natasha Hausdorff is a barrister in London and a director of UK Lawyers for Israel
