HRW accidentally admits that Gaza isn't occupied

Human Rights Watch has released a new anti-Israel report:

“The Israeli government is unlawfully incarcerating prisoners from Gaza inside Israel and then making it very hard for their families to visit them,” said Sari Bashi, Israel and Palestine director. “The government’s security concerns over having these families enter Israel for visits with their loved ones are of its own making.”

Israel holds most Palestinian prisoners who were apprehended in occupied territory inside Israel, in violation of international humanitarian law prohibitions against transferring residents from occupied territory. It then requires family members to obtain permits from the military to enter Israel to visit them. This means that family members must pass an Israeli Security Agency (Shin Bet) security screening to visit their imprisoned relatives.

The main point of the report is that Israel has placed too many restrictions on Gaza family visits to prisons in Israel, such as not allowing siblings of terrorists to visit if they are above 15. There are obvious security concerns with older siblings who are very often the first to become terrorists themselves, and Israel is quite within its rights under international law to prioritize security over family visits.

But a secondary theme of the report is that Israel is violating international law by incarcerating Gazans in prisons within Israel rather than within the "occupied territories." They get this from the Fourth Geneva Convention article 76, which states "Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein."

HRW, however, admits that part of the Geneva rules cannot apply to Gaza:

While holding these prisoners in Gaza is not practicable, because Israel ended its permanent ground troop presence in Gaza in 2005, Israel can and should transfer them to the West Bank, the other part of the occupied Palestinian territory, Human Rights Watch said. The prohibition against removing prisoners from the occupied territory is designed, in part, to allow them to maintain family ties, and the Israeli government should facilitate visits for family members from Gaza to the maximum extent possible.

Why is it not possible for Israel to hold the prisoners in Gaza? After all, isn't it occupied territory according to HRW? Geneva doesn't make a distinction between "occupied territory where the occupying army has actual control" and "occupied territory where the army has no possibility of maintaining the obligations of the Convention." HRW is making such a distinction, which has no basis.

Because Gaza isn't occupied by any reasonable definition of international law, and HRW knows it. The state of occupation in international law is binary, either it is or it isn't, based on whether the occupying army has "effective control." If the army cannot set up a prison within the territory, then by definition the territory isn't occupied.

Also, HRW's legal arguments end up supporting the fact that not only is Gaza not occupied  - neither is Area A, another place where it would be "not practicable" to build new prisons. It is not under "effective control" of the IDF.

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There is much more that is notable in HRW's attempts to force Israel to adhere to its interpretations of international law.

HRW suggests a convoluted solution where Israel should build prisons in the West Bank to help Gaza prisoners be more accessible by their families, under the idea that the West Bank and Gaza are pretty much the same. But the same security issues that they are complaining about for Gazans to visit Israeli prisons would apply for Gaza families to visit prisons in the West Bank, because they would be traversing Israeli territory anyway! It would not make an iota of difference - and, as we will see, it would probably be worse for the prisoners.

Moreover, even this HRW report admits that only 7% of Gaza prisoners have families in the West Bank, so very few of them would be able to see their families more often under this convoluted solution.

What about the bigger question of whether Israel should be building more prisons in the West Bank under HRW's interpretation of the Geneva Conventions, rather than place them in Israeli prisons? Is Israel violating international law?

This question has come up before the Israeli Supreme Court, most notably in its 2010 decision on Yesh Din vs. Minister of Defense.  The Supreme Court ruled that the main driver for the Conventions is proper respect for the rights of the detainees, and that Israeli prisons are superior in that respect to any military detention facilities that Geneva seems to require:

We reiterate and reemphasize that in everything connected with conditions of detention and the relevant provisions of the Geneva Convention and even of additional international laws regarding the holding of detainees, this Court determined clearly and unequivocally that Israel must respect the provisions of international law, and that every detainee is entitled to conditions of detention appropriate to his human self respect. This Court did not withhold criticism as to the determination of physical conditions and personal welfare needed by the detainee, and in this matter, as aforesaid, there has been considerable improvement, precisely because the detainees are held in Israel. As we noted, the provisions of the Convention must be interpreted as bearing on the special conditions of holding of the area in the hands of Israel, and in consideration of its principled initial point, as laid down in Article 27 of the Convention, which instructs as follows:

 “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity...
However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” 

In this the respondents are observing the relevant provisions of the Geneva Convention regarding conditions of of holding of detainees, In this matter, with adaptation, the words of Justice Bach in the Sajidia Case are good in that he felt that the Convention must be observed according to the proper interpretation, and he said: “It cannot be understood from these words that all the provisions included in the Convention, and relating to the detention of administrative detainees must be observed blindly; each provision must be examined according to its importance, vitality and appropriateness to the special circumstances of the detainees camp that is the subject of our discussion” (ibid, p.832)

The Court also notes that if Israel would build new prisons in the territories, that could cause other problems in international law, both for prisoners and for Palestinian Arabs.

 In the circumstances created thought must be given to the practical implication of erecting new prison facilities in the area in the required scope after withdrawal of IDF forces from the cities in which were facilities in the past, erection in the course of which there may be harm to detainees from the viewpoint of conditions of holding and to the local residents on whose land the facilities will be built. In application of the provisions of the Geneva Convention they must be implemented in adaptation to the reality that was not foreseen by the drafters of the Convention; the geographic proximity of the area to Israel must also be taken into account and the fact that there is nothing in the holding of detainees in Israel to necessarily deprive them of family visits or legal aid. There must, therefore, be separation between the obligation to observe the humanitarian provisions of the Convention and the maintenance of conditions of detention of detainees and between the argumentation as to the location of detention; in consideration that the question of location of the detention was arranged years ago in enactments of the Knesset, and its legality was approved in verdict of this Court, and in consideration that the conditions of Israel’s holding of the area and the reality prevailing between Israel and the area, the holding in prison facilities in Israel does not strike at the essential provisions of international law. 

A previous court ruling is what caused the Palestinian prisoners to go to prisons that are maintained by Israel's Prisons Authority rather than the army, because prisoner rights are maintained better by the IPA. In fact, the one prison in the territories, Ofer, is now run by the IPA because of the Supreme Court. The human rights of prisoners are a prime consideration in its rulings, unlike how HRW tries to characterize the Israeli justice system.

There are two sides to every story and HRW chooses the anti-Israel side, without discussing the context. This Yesh Din ruling shows that Israel indeed respects Geneva, and goes beyond Geneva to maintain its spirit when its actual words would be more detrimental to prisoners.

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