Military Prosecutor v Omar Mahmud Kassem

CourtMilitary Court (Israel)
Date13 April 1969
Israel, Military Court sitting in Ramallah.
Military Prosecutor
Omar Mahmud Kassem and Others.

War Prisoners of War Definition of Members of Popular Front for the Liberation of Palestine Relevance of lack of attachment to any governmental authority Effect of failure to conduct operations in accordance with laws of war Jurisdiction to determine status as prisoners Geneva Convention on Prisoners of War, 1949 (Articles 2, 4 and 5) The law of Israel.

Summary.The accused were members of the Organization of the Popular Front for the Liberation of Palestine. At the time of their capture by Israel forces in the occupied area west of the Jordan River they were wearing dark green clothing and mottled peaked caps and were carrying assault rifles. The evidence was that the Popular Front was not part of the Jordan Army and was an illegal organization in Jordan.

The Military Court held (i) that it was a competent tribunal to determine the status of the accused; and (ii) that the accused were not prisoners of war on the grounds that they belonged to an organization for which no State was responsible and that they did not conduct their operations in accordance with the laws and customs of war.

The following is the judgment of the Court:

After we had heard the evidence of Sergeant Abraham Erdos, a witness for the prosecution, and part of the evidence of Corporal Ronald Dayan, the second witness for the prosecution, the first of the accused pleaded that he was a prisoner of war, and similar pleas were made by the remaining defendants.

When the defendants were asked by the Court whether they were prepared to testify so that it could be ascertained whether the conditions entitling them to be regarded as prisoners of war were fulfilled, the first defendant refused to testify, stating that he did not recognise the jurisdiction of the Court.

The second defendant, on the other hand, was prepared to testify on oath. In the course of his evidence, he claimed that he belonged to the Organization of the Popular Front for the Liberation of Palestine and when captured was wearing military dress and had in his possession a military pass issued to him on behalf of the Popular Front, bearing the letters J.T.F. [Popular Front for the Liberation of Palestine], my name and my serial number (p. 19 of the record). At the outset of his cross-examination, this witness decided that he no longer wished to continue giving evidence. Further witnesses for the defence were not heard. In view, however, of the Prosecutor's statement at p. 16 of the record, we assume that the defendants wore dark green uniforms and mottled caps, and we also assume that they were in possession of passes as mentioned in the evidence of the second defendant.

The first problem arising in this trial is how it can be determined that a given person is entitled to the treatment and status of a prisoner of war, and who may determine that such a person is indeed entitled to that status.

On this problem, we have reached the following conclusions:

  • (a) Every court has a basic right, inherent in its very existence, to define the scope of its material jurisdiction, and, whenever the question of jurisdiction arises before a court, it may consider and determine whether it is actually competent to deal with the issue brought before it.

  • (b) This Court is competent to decide whether the offences alleged against the defendant in the charge-sheet have in fact been committed; our competence with regard to these offences derives from the provisions of section 8 of the Order concerning Security Instructions. On the other hand, the plea that the defendants are prisoners of war, though not expressly mentioned among the defences recognized by the legal code elaborated in the Orders regulating criminal responsibility, is of the class of plea that could nullify our jurisdiction with regard to the offences imputed to the defendants or require the alleged acts to be treated as acts whose perpetrators should not be brought to trial at all, which means that the defendants would not be punishable for them.

It appears from the foregoing that our jurisdiction under section 8 of the Order concerning Security Instructions is limited by the provisions of customary International Law and those of the various Conventions regarding the treatment of prisoners of war. In so far as Israel is a party to these Conventions, the limitation is a result thereof. In so far as Israel is not a party, the limitation flows from the fact that these Conventions are declaratory of a legal situation which is part of the body of customary International Law. It is an established rule that prisoners of war are not to be brought to trial for offences committed immediately before their capture, unless these offences are war crimes; there are other exceptions to this rule which are not relevant here.

Our very assumption concerning the limitation of our jurisdiction with regard to persons who may be accorded the status of prisoners of war empowers us to decideeven if only incidentally to our determination of who is punishable under the Order and who, by virtue of being a prisoner of war, is notwhether an accused person who claims prisoner-of-war status is indeed to be classified as such and, consequently, to decide that we have no penal jurisdiction over him and that upon capture his proper place is a prisoner-of-war camp.

We are fully aware of the provisions of the Geneva Convention of 12 August, 1949 regarding the treatment of prisoners of war, and especially Article 5, of which the second paragraph provides that

should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

We do not know whether a competent tribunal, within the meaning of Article 5, has been set up in any part of the civilized world either under the Geneva Convention or any other international agreement. It seems to us thatat least in the...

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