Guest Post: Is the Execution of Collaborators a War Crime under the Rome Statute? (Part I)

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is Part 1 of a two-part series.]

The recruitment and use of Palestinian collaborators by the Israeli authorities, and their ill-treatment and execution by Palestinian forces, has been a perennial feature of the conflict in Israel and Palestine. A common practice in many armed conflicts, the use of informers is seen as a vital means of intelligence gathering. A 2006 United States counterinsurgency manual stated that “[n]othing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters among the public are deserting or providing information to government authorities”. It is lawful, according to the United Kingdom manual on the laws of armed conflict, “to induce enemy civilians or soldiers to give information”, although it is clearly unlawful to use coercion against protected persons for such purposes. Such collaboration would be usually considered as treason or spying for an enemy, which is criminalised in most national jurisdictions, and for which numerous States have retained the death penalty.

Despite the prevalence of collaboration and informing during armed conflicts, international humanitarian law has had relatively little to say about the practice. Collaborators are not referred to as individuals or as a distinct category of participants in armed conflict in the relevant treaties, and thus not defined under the laws of armed conflict, while spies are generally understood under humanitarian law as referring to members of the armed forces that engage in espionage. The practice of collaboration is neglected in the legal academic literature also, although the phenomenon is addressed in other disciplines. International law has tended to defer to national jurisdictions when it comes to dealing with collaborators or traitors. During the Second World War, the United Nations War Crimes Commission decided that “[t]he trial of quislings would be left exclusively to the National Governments”. In the great purges that followed the Second World War thousands of collaborators were executed in Europe, many extra-judicially. The subsequent drafting of the 1949 Geneva Conventions saw States assert their right to deal with “spies and traitors” outside of the Conventions’ protections – the derogation in Article 5 of the Fourth Convention concerning protected person status is described as “an important and regrettable concession to State expediency”. The article does insist, however, on humane treatment and the rights of a fair and regular trial for certain persons suspected of having engaged in acts deemed hostile to State security.

The Commission of Inquiry on Gaza

Israeli security services have been said to use a “combination of pressure and sweeteners to entice Palestinians to divulge intelligence”. The Goldstone Commission briefly addressed the phenomenon of collaboration in Gaza, noting that it had received reports of attempted recruitment of Palestinians activists by the Israeli security services. The Commission condemned the killing of alleged collaborators by the Gaza authorities, describing these as “serious violations of human rights”. The United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict paid greater attention than its predecessor to the treatment of suspected collaborators by Palestinian armed groups, and analysed the lawfulness of their treatment through both human rights law and international humanitarian law. Regarding the killing of collaborators, the Commission reported that:

… the 2014 hostilities were marked by an upsurge in extrajudicial executions of individuals alleged to have spied for Israel. Most of the executions were public. The fact that the majority of the victims had been arrested and detained before the conflict prompts concerns that they were executed in order to increase pressure on Gaza’s population, with a view to preventing others from spying.

The Commission noted the allegations of ill-treatment and torture of suspected Palestinian collaborators, and emphasised the considerable stigma which attaches to the families of those Palestinians said to have collaborated with Israel. The recruitment and treatment of Palestinian collaborators has long been addressed by organisations such as the Palestinian Centre for Human Rights and B’tselem, and the Commission’s report serves to highlight the harsh treatment which regularly befalls those Palestinians perceived as traitors. But as with a recent Amnesty International report on Palestinian violence, the Commission’s report neglects to analyse the role or responsibility of the Israeli authorities in relation to the recruitment and use of Palestinian collaborators. Nevertheless, the Commission’s analysis will undoubtedly be of interest to the Prosecutor of the International Criminal Court as she considers whether to open an investigation in Palestine.

The Commission on Gaza applied both human rights law and international humanitarian law to its consideration of the legality of the extra-judicial execution of suspected Palestinian collaborators, leaving aside the other allegations of ill-treatment. It found that the 21 summary executions it had documented violated the right to life under Article 6 of the International Covenant on Civil and Political Rights and fundamental guarantees set out in Common Article 3 of the 1949 Geneva Conventions. For the latter finding, the Commission explained:

Because of their link to the armed conflict, the extrajudicial executions constitute a violation of article 3 common to the 1949 Geneva Conventions, which, in relation to “persons taking no active part in the hostilities […] and those placed “hors de combat” by […] detention, prohibits (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture […]; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” and amount to a war crime. Whoever is responsible for the killings, whether the Al Qassam Brigades, other Palestinian armed groups, or the local authorities, must be brought to justice.

This comprises the Commission’s most definitive finding on war crimes in Gaza, as all other examples are treated with greater circumspection, being accompanied by phrases such as “if proven” or “may amount to”.

On the face of it, the Commission’s analysis is correct. Extra-judicial executions are a severe human rights violation, whether committed during an armed conflict or otherwise. In its consideration of the treatment of civilians and persons hors de combat, the Commission applied the holding of the International Court of Justice that the fundamental rules of Common Article 3 apply equally to both international and non-international armed conflicts. While some alleged collaborators might be considered as civilians who had directly participated in hostilities – the Commission described an account of Israeli soldiers being accompanied by Palestinians who were providing them with information – they were clearly hors de combat when executed, with such conduct related to an armed conflict. With violations of Common Article 3 qualifying as war crimes under Article 8 of the Rome Statute of the International Criminal Court, the Commission’s holding seems incontrovertible. Amnesty International and Kenneth Roth of Human Rights Watch agree that these executions qualify as war crimes.

On further analysis, however, the Commission’s finding that such war crimes were committed by Palestinian armed groups against Palestinian civilians sits somewhat uneasily with the rules and precepts of international humanitarian law. This body of law has long demonstrated more concern for how captured enemy soldiers or the other side’s civilians are treated, than with how parties treat their own nationals. In the Justice case, for example, a United States Military Tribunal stated that the concept of war crimes excluded “atrocities committed by Germans against their own nationals”. While the law of war crimes has obviously advanced and broadened considerably since then, Article 8 of the Rome Statute refers to crimes against prisoners of war, surrendering combatants, the “enemy’s property”, individuals “belonging to the hostile nation or army” and those in the power of an “adverse” or “another” party. Certain conduct which is inherently criminal and may be connected in some way to an armed conflict, may remain outside the scope of the law of war crimes. The ICC Pre-Trial Chamber in Ntaganda did not dismiss out of hand the defence claim that international humanitarian law “does not protect persons taking part in hostilities from crimes committed by other persons taking part in hostilities on the same side of the armed conflict”. The widespread sexual assaults on female United States soldiers by fellow soldiers while serving in Iraq and the so-called “hazing” of United States soldiers by their colleagues in Afghanistan would not qualify as war crimes.

[Part II of this post will be online tomorrow morning.]