This essay addresses the legal status of Palestinian political prisoners under international humanitarian and human rights law. At the heart of this issue lies the fundamental question of Israel’s right to arrest hundreds of thousands of Palestinians, put them on trial before arbitrary military courts, and treat them as criminals in its capacity as the occupying power given the internationally-recognized right of Palestinians to resist occupation and pursue self-determination. This question takes on all the more urgency considering the illegal nature of the Israeli occupation[i] and given that the laws and rules of war are applicable to Palestinian detainees as their status conforms to the definition of prisoners of war and civilians under occupation pursuant to the Geneva Conventions of 1949.
[i] Two points of view on the legality of occupation under international law emerged in the wake of the U.S. occupation of Iraq. One view justified and legitimized the occupation on the grounds that it rescued the Iraqi population from an oppressive regime and therefore had humanitarian aims. Critics, including international law expert Richard Falk, disputed the view: claiming that regime change was a humanitarian aim was not equivalent to claims of humanitarian intervention under international law, they argued. International jurist and war crimes law expert Antonio Cassese has also asserted that while occupation is illegitimate in general, it might be considered legitimate if it was carried out in self-defense, restricted, and temporary. For more opinions see: Orna Ben-Naftali, Aeyal M. Gross, and Keren Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territory,” Berkeley Journal of International Law 23, no. 3 (2005), pp. 557–8, http://scholarship.law.berkely.edu.