By: Prof. Dr. Ahmed Mubarak al-Khalidi.
(Exclusively for al-Zaytouna Centre).
The so-called Israeli “law” authorizing the execution of Palestinian prisoners, whether civilians or individuals affiliated with Palestinian resistance engaged in opposition to prolonged occupation and the pursuit of self-determination, is fundamentally incompatible with the principles of legality under both customary and treaty-based international law.
This legislation, which Israel has falsely designated as a “law,” has, following its enactment, become part of a body of Israeli legislation that is incompatible with international law, international humanitarian law, international criminal law, and the customary rules governing international armed conflicts, wars of national liberation, and the exercise of the right to self-determination. These rules guarantee the protection of human rights in general and, in particular, safeguard the right to life of Palestinian prisoners, whether they are civilians or combatants engaged in the struggle for liberation from occupation.
Accordingly, international law, in its various branches derived from customary international law and international treaties as its primary sources, determines the lawfulness of the treatment of Palestinian prisoners and the rights to which they are entitled. Any act or measure undertaken by the Detaining Power in violation of these rules is unlawful and constitutes an international crime. Furthermore, a State’s persistence in committing such acts may be regarded as an act of State terrorism.
At the outset, prisoners fall into two categories:
First: Prisoners who are civilians and who have not directly participated in hostilities, including individuals who were formerly associated with armed forces but were unarmed or had laid down their arms at the time of capture. International law, as reflected in the relevant international humanitarian law instruments, strictly prohibits any violation of their rights or any form of cruel treatment.
Second: Members of armed forces or organized armed groups as defined under Article 4 of the Third Geneva Convention of 1949. Such prisoners are entitled to prisoner-of-war status and to the full range of protections guaranteed under the Third Geneva Convention, including the prohibition on waiver or renunciation of rights in accordance with Article 7 of that Convention.
In general, pursuant to Article 13 of the Convention, the Detaining Power is prohibited from taking “measures of reprisal against prisoners of war.” The State holding prisoners also bears responsibility for ensuring their security, in accordance with Article 23.
In brief, under the international legal framework governing the protection of prisoners, all provisions of the four Geneva Conventions and Additional Protocol I prohibit acts of reprisal against persons protected under these instruments, as well as against protected objects. This protection extends to prisoners, whether combatants or civilians, and is non-derogable and not subject to waiver, whether through coercion or consent.
The Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War, together with Additional Protocol I, particularly Part III, Section II, provides that any combatant falling into the power of the adverse party shall be treated as a prisoner of war and shall be placed under the authority of the Detaining Power, rather than under that of the individuals or military units that effected the capture. Accordingly, the State assumes full international responsibility for any acts committed by its agents against the prisoners in violation of international law.
Under the Convention, prisoners of war are entitled at all times to humane treatment. The Detaining Power is further obligated to provide them, free of charge, with sufficient food and clothing. The prisoners of war “shall be quartered under conditions as favourable as those for the forces of the Detaining Power.” The Detaining Power is also obligated to furnish medical care appropriate to the prisoner’s medical condition..
International law further recognizes legal protections for persons who participate in hostilities but do not qualify for prisoner-of-war status, as well as for civilians who fall into enemy hands. In addition to the safeguards provided under the Fourth Geneva Convention, such persons are entitled to fundamental guarantees of humane treatment, including strict prohibitions on violence against life, health and personal dignity. These guarantees apply in all circumstances, including in non-international armed conflicts.
The principal legal bases under international law and international conventions affirming the fundamental rights of prisoners, as set out in the Third Geneva Convention, require the Detaining Power to ensure the following:
• Humane treatment of prisoners (Article 13).
• Respect for the persons and honour of prisoners (Article 14).
• Maintenance of prisoners (Article 15).
• Adequate quarters (Article 25).
• Sufficient food (Article 26).
• Appropriate clothing (Article 27).
• Necessary sanitary and hygienic measures (Article 29).
• Medical attention (Article 30).
• Complete latitude in the exercise of prisoners’ religious duties (Article 34).
The Third and Fourth Geneva Conventions, together with their Additional Protocols, set out in detail the rights that the detaining Power is obligated to ensure for prisoners.
The rules of international law governing the rights of prisoners constitute peremptory norms of a binding character. Pursuant to Article 53 of the Vienna Convention on the Law of Treaties, a peremptory norm of general international law (jus cogens) is defined as: “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”.
The International Law Commission of the United Nations (UN) has likewise affirmed this principle, and it has been repeatedly endorsed in UN General Assembly (UNGA) resolutions, including, for example, Resolution 2787 (1971) and Resolution 3103 (1973). Through these resolutions, the UNGA held that the struggle of peoples under colonial domination constitutes a legitimate struggle fully consistent with the principles of international law, and that conflicts of this nature qualify as international armed conflicts within the meaning of the Geneva Conventions; accordingly, the provisions of international law apply thereto.
This position was reaffirmed in General Assembly Resolution 3103 (1973), which stated that “armed conflicts involving the struggle of peoples against colonial and alien domination and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions.”
Article 5 of the Third Geneva Convention provides that: “The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.”
Pursuant to Article 4 of the Third Geneva Convention:
a. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
a. that of being commanded by a person responsible for his subordinates;
b. that of having a fixed distinctive sign recognizable at a distance;
c. that of carrying arms openly;
d. that of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members… war correspondents….. .
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces…. .
Article 8/2/a of the Rome Statute of the International Criminal Court (ICC) classifies grave breaches of the 1949 Geneva Conventions as war crimes, as well as:
any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment… ;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property… carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
….
(viii) Taking of hostages.
Accordingly, the Palestinian prisoners are held in connection with their asserted participation in a lawful struggle against Israeli colonial occupation and domination over the Palestinian people, and in pursuit of their right to self-determination and freedom. They embody the rejection by their people of occupation and resist the colonial power through all lawful means recognized under international law and established international custom, which affirm that the inalienable rights of peoples are non-waivable and not subject to prescription. In this regard, international law, international humanitarian law, and relevant international conventions establish the fundamental rights of prisoners who fall into the hands of the adversary during struggles against colonial domination. These instruments further impose binding obligations on the occupying Power, which holds prisoners, to ensure their treatment in accordance with applicable international legal standards throughout the period of imprisonment, until their release and repatriation to their homeland.
However, Israel has no intention of ending its prolonged occupation. Nearly eight decades have passed since 1948, when Britain enabled its establishment and the major powers recognized the establishment of a state for Jewish immigrants. Throughout this period, Israeli occupation has continued to usurp the rights of the Palestinian people, including within the boundaries imposed by the allegedly unlawful Partition Resolution No. 181 of 1947.
Nor did Israel stop there. Rather, it continued its expansion and occupation of additional territory until, in 1967, it occupied the whole of Palestine. To this day, it continues to refuse withdrawal and denies the Palestinian people’s right of return and right to self-determination in their homeland, in violation of international law, UN resolutions, and the obligations imposed thereunder. This includes paragraph C of UN Resolution No. 181 (1947), which provides that the UNSC “determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution.”
Since that time and to the present, Israel has violated the rules of international law on hundreds of occasions, as evidenced by resolutions of the UNSC and dozens of resolutions adopted by the UNGA, which have repeatedly called upon Israel to comply with the rules of international law affirming the fundamental rights of the Palestinian people. These include, inter alia:
• UNSC Resolution 252 (1968).
• UNSC Resolution 267 (1969).
• UNSC Resolution 271 (1969).
• UNSC Resolution 298 (1971), which called upon Israel to rescind all previous measures aimed at altering the status of Jerusalem.
• UNSC Resolution 446 (1979).
• UNSC Resolution 452 (1979).
• UNSC Resolution 465 (1980).
• UNSC Resolution 478 (1980), which condemned the establishment of settlements, determined that they lack legal validity, called for the cessation of settlement activities in the Arab territories and Jerusalem, the dismantling of the settlements, the non-recognition of Israel’s Basic Law on Jerusalem, and called upon States to withdraw their diplomatic missions.
The foregoing represents only a small number of the UN resolutions condemning Israel’s continuing violations of international law and its unlawful use of force to terrorize Palestinians, displace them from their land, and seize their property. Nevertheless, these resolutions have failed to protect Palestinian rights, despite their explicit condemnation of such terrorist acts as constituting grave aggression against the rights of the Palestinian people under UNGA resolutions. By way of example, UNGA Resolution 2787 (1971) provides, verbatim, as follows:
The General Assembly, solemnly reaffirming that the subjection of peoples to alien subjugation, domination and colonial exploitation is a violation of the principle of self-determination as well as a denial of basic human rights and is contrary to the Charter of the United Nations,
(…..)
Confirming that colonialism in all its forms and manifestations, including the methods of neo-colonialism, constitutes a gross encroachment on the rights of peoples and on the basic human rights and freedoms,
(…..)
Reaffirming the inalienable rights of all peoples, and in particular those of Zimbabwe, Namibia, Angola, Mozambique and Guinea (Bissau) and the Palestinian people, to freedom, equality and self-determination, and the legitimacy of their struggles to restore those rights,
(…..)
1. Confirms the legality of the peoples’ struggle for self-determination and liberation from colonial and foreign domination and alien subjugation, notably in southern Africa and in particular that of the peoples of Zimbabwe, Namibia, Angola, Mozambique and Guinea (Bissau), as well as of the Palestinian people, by all available means consistent with the Charter of the United Nations;
2. Affirms man’s basic human right to fight for the self-determination of his people under colonial and foreign domination;
The reality, however, is that Israel disregards the rules of international law, UN resolutions, and established international custom, and employs all unlawful means of force to entrench its colonial domination and subjugation of the Palestinian people. It further denies that it occupies the territory of Palestine by force, notwithstanding the position of the international community that the Palestinian territories under its control are occupied territories to which the Geneva Conventions apply. One such affirmation is contained in UNGA Resolution 42/160 (1987), thereby confirming the lawfulness of Palestinian resistance to occupation.
Accordingly, if any Palestinian is taken prisoner by the Israeli occupation forces, he is entitled, under international law, international treaties and UN resolutions, to the legal protection of his fundamental rights, foremost among them the right to life.
Further affirming this principle, international law, international treaties and UN resolutions recognize the legitimacy of the Palestinian people’s struggle against Israeli colonialism and foreign domination. By way of example, UNGA Resolution 3103 (1973), following its preamble recalling the principles of international law and the international resolutions adopted in their application to the Palestinian case, formally proclaims the fundamental principles governing the legal status of combatants engaged in struggles against colonial domination and apartheid and racial oрpression, as follows:
1. The struggle of peoples under colonial and alien domination and racist régimes for the implementation of their right to self-determination and independence is legitimate and in full accordance with the principles of international law.
2. Any attempt to suppress the struggle against colonial and alien domination and racist régimes is incompatible with the Charter of the United Nations…. .
3. The armed conflicts involving the struggle of peoples against colonial and alien domination and racist régimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions…. .
Based on the foregoing, there is no doubt that the Geneva Conventions apply to Palestinian prisoners held by Israel. Accordingly, those who are captured while engaging in resistance to Israeli settler-colonialism are entitled to the protections afforded to prisoners under international law and the Third Geneva Convention. Article 4 of the Convention defines the categories of persons qualifying as prisoners of war, while Article 5 provides that the Convention applies from the moment prisoners fall into the hands of the enemy until their final release and repatriation.
The Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War guarantees prisoners a set of fundamental rights. At a minimum, the detaining Power may not sentence prisoners or execute penalties against them except pursuant to a fair trial before a regularly constituted court, affording all judicial guarantees recognized as indispensable by civilized peoples. Such guarantees exclude reliance on military determinations that lack a lawful basis under international law and that disregard the rights of prisoners, particularly where the objective is to deprive them of the right to life or to undermine their dignity and moral integrity.
The 1949 Geneva Conventions require each party to an armed conflict to comply with their provisions, including in relation to States that are not parties to the instruments. The Conventions also prohibit the taking of hostages, which the occupying Power refers to as “administrative detention,” even where no armed act has been committed against it. In practice, civilians are arrested and held for years under so-called administrative detention, amounting to a form of unlawful deprivation of liberty of persons protected under the 1949 Geneva Conventions.
The practices described above by the occupying Power against Palestinians constitute a manifest breach of international law and a clear instance of State terrorism, involving the commission of the most serious crimes and conduct that undermines international peace and security. Such actions are in violation of international legal norms, treaties and customary rules developed by States through significant historical sacrifice.
Accordingly, the Rome Statute of the ICC recognizes that grave breaches of the Geneva Conventions and violations of the rights they guarantee to protected persons constitute serious war crimes. In this context, violations of the rights established under international treaties applicable to prisoners, including the Geneva Conventions and the rules of international humanitarian law, amount to war crimes, as set out in Article 8 of the Rome Statute of the ICC, as follows:
(i) Wilful killing. [As is the case with the conduct of Israeli occupation forces, including the killing of individuals in the field without trial, even prior to capture];
(ii) Torture or inhuman treatment… ;
(iii) Wilfully causing great suffering, or serious injury to body or health;
Furthermore, Israeli occupation forces also commit, against prisoners and all persons protected under the Geneva Conventions, crimes against humanity as defined in Article 7/1/e of the Rome Statute of the ICC, including “severe deprivation of physical liberty” through the detention of thousands of individuals by field military orders or by so-called military court decisions that fail to provide any meaningful guarantees of due process. This includes the imposition of hundreds of life sentences on those arrested.
They further engage in “other inhumane acts… intentionally causing great suffering or serious injury to body or to mental or physical health,” which constitute crimes against humanity under Article 7/1/k of the Rome Statute of the ICC.
The Israeli defiance of international law and international resolutions is explicitly acknowledged by its own officials. The Minister of National Security, Itamar Ben-Gvir, announced on 17/5/2026 the initiation of procedures to implement the death penalty against prisoners. On the same date, the Commander of the Israeli Central Command signed an amendment authorizing the execution of prisoners. Furthermore, the Knesset approved on 12/5/2026 the establishment of a special military court for those arrested in connection with 7/10/2023, thereby operationalizing the measures publicly announced by the Israeli leadership.
Moreover, UN bodies have documented allegations that Israeli political and military leadership have committed the most serious international crimes, including genocide, war crimes and sexual violence. The Special Representative of the Secretary-General on Sexual Violence in Conflict (SRSG-SVC) has reportedly included the Israeli army, Israel Prison Service, and certain security units on a list of actors implicated in patterns of ongoing rape and sexual violence.
Accordingly, statements and actions attributed to the Israeli leadership constitute acts of State-based terrorism, and the international community is increasingly aware of their implications for international peace and security. It is therefore necessary to call upon UN bodies and States to adopt coordinated international measures in response to what is described as an entity in persistent defiance of international law and customary norms.
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