During the raid and arrest campaign, a large amount of gold and luxury watches were confiscated in addition to about a million shekels in cash and bank checks, as well as 22 cars assumed to have been used in suspicious activities, in addition to drug-related and other materials.3
The application of Israel’s domestic law and extension of Israel’s policing operations across the occupied West Bank and into Ramallah, which is Area A and is under full and exclusive Palestinian administrative control, represents a gross overreaching of Israel’s sovereign authority into the Occupied Palestinian Territory (OPT). Notably Israel does not have the competence under occupation law to apply its domestic law to the OPT, where it is not the legitimate sovereign and exercises limited powers of temporary governance only.4 It is a rudimentary and basic tenant of the law of belligerent occupation that the domestic law of the occupied territory continues in force as the status quo ante bellum. Any alteration of this law beyond humanitarian considerations or military necessity directly contravenes Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention respectively.5 Al-Haq condemns the application of Israel’s domestic criminal law to the OPT as an annexationist and colonialist measure.
Furthermore, the deployment of the IOF for the purposes of Israel’s domestic policing in the West Bank exceeds the security co-ordination agreements concluded between Israel and the Palestinian Authority under the 1993 Oslo Accords, and the 1994 Cairo Agreement, which stringently limit Israeli policing to “responsibility for defending against external threats”.6 It is the responsibility of the Palestinian Police to carry out “ordinary police functions such as directing traffic, arresting common criminals, fighting drug trafficking and keeping public order.”7
Al-Haq is concerned that the arrests of the 19 Palestinians across the West Bank are unlawful, given that they were carried out in the context of Israel’s domestic laws which do not apply to the West Bank, and are not governed by domestic Palestinian law. According to Article 9(1) of the ICCPR, “no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”. The United Nations Human Rights Committee has further established that the principle of legality “is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation”.8 In addition, administrative detentions, which may be carried out under the Article 43 of the Fourth Geneva Convention, are “exceptionally severe measures which may be applied only if they are absolutely necessary for the security of the State.”9 As such, internment measures for the breach of a domestic criminal law in another State would not reach the exceptional threshold of gravity advanced in terms of maintaining the security of the occupied territory.
Al-Haq further contends that the raids and appropriation of private Palestinian gold, money, and cars may constitute the crime of pillage.10 The seized items were not requisitioned for the ‘needs of the army of occupation’ or for use in ‘military operations’ as provided for under Article 52 and 53 of the Hague Regulations, but represent instead, an unlawful acquisition of private Palestinian property which may amount to the war crime of pillage.11 Accordingly, Israel’s confiscation of gold and property from the West Bank may fall within the jurisdiction of the International Criminal Court in its preliminary examination into the situation in Palestine since 13 June 2014.
1Al-Haq Field Report, 23 November 2017. Wafa, ‘Israeli Forces Ransack Jewelry Store in Ramallah, Steal Gold Merchandise’ (20 November 2017), available at: http://english.wafa.ps/page.aspx?id=BoQd1Xa94389152022aBoQd1X;
2Translation on file with Al-Haq. Luba Al-Samri, Israeli Police Spokesperson, ‘Judea and Samaria – Gold Trade, Money Laundering and Arrest of 19 Suspects’ [Arabic] (Facebook Post, 20 November 2017), available at: https://m.facebook.com/story.php?story_fbid=870472629786853&id=516312228536230.
3Translation on file with Al-Haq. Luba Al-Samri, Israeli Police Spokesperson, ‘Judea and Samaria – Gold Trade, Money Laundering and Arrest of 19 Suspects’ [Arabic] (Facebook Post, 20 November 2017), available at: https://m.facebook.com/story.php?story_fbid=870472629786853&id=516312228536230.
4Article 43, Hague Regulations (1907).
5Allan Gerson, ‘Off-Shore Oil Exploration by a Belligerent Occupant: The Gulf of Suez Dispute’ (1977) 71(4) American Journal of International Law 725-733; Thomas Baty, ‘The Relations of Invaders to Insurgents’ (1927) 36 Yale Law Journal 966, 978.
6Article VIII, Declaration of Principles on Interim Self-Government Arrangements (Oslo Accords).
7Madeline Kristoff, ‘Policing in Palestine: EU Reform Mission in the West Bank’, Security Sector Reform Issue Papers No. 7 (February 2012), available at: http://issat.dcaf.ch/content/download/16874/198365/file/CIGI-%20SSR%20Issue%20Papers%20No.%207.pdf.
8UN Human Rights Committee, Communication No. 702/1996, McLawrence v Jamaica (Views adopted on 18 July 1997), UN doc GAOR, A/52/40 (vol. II), pp. 230-231, para. 5.5.
91958 Commentary to Article 43 of the Fourth Geneva Convention.
10Article 8(2)(b)(xvi), Rome Statute of the International Criminal Court.
11Article 47, Hague Regulations; Article 33, Fourth Geneva Convention; Article 8(2)(b)(xvi), Rome Statute of the International Criminal Court.