Blood Money: Amid Accusations of Hamas Payouts in Israeli Prison, the ICRC Should Be Treated as a ‘Legal Person’ Commentary
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Blood Money: Amid Accusations of Hamas Payouts in Israeli Prison, the ICRC Should Be Treated as a ‘Legal Person’
Edited by: JURIST Staff

Recently, the International Committee of the Red Cross (ICRC or Red Cross) has been accused of facilitating payments to accused terrorists captured and held by Israel in the ongoing Hamas-Israel conflict. The ICRC denies this claim.

The ICRC has a blemished record, disturbingly far from its professed humanitarian mandate. A journalistic investigation conducted by ProPublica and NPR revealed evidence the Red Cross has thrown away food, taken away emergency vehicles from relief workers and used them for PR purposes, sheltered children next to sex offenders, gave out flashlights without batteries, and that its sister organization the Canadian Red Cross Society was convicted of criminal mishandling of Canada’s national blood supply resulting in the widespread transmission of HIV in the 1980s. During World War II, delegates of the ICRC engaged in activities that ran counter to the organization’s humanitarian mandate. The ICRC adopted a position of neutrality during that war and avoided interfering with Nazi racial persecution by claiming it was an internal German matter.

In the current Hamas-Israel conflict, the ICRC has failed to visit any Hamas-held hostages. This has been justified by the claim they don’t know where the hostages are located. While it is true that the ICRC has met with Hamas leadership, the substance of that meeting is unknown.

Israel has detained Palestinians and Hamas has detained Israelis, but a key distinction must be noted. Hamas’ detention of hostages is a war crime. The taking of Hamas prisoners by Israel comports with the laws of war, though Israel could deny them prisoner-of-war status upon capture. Israel grants unfettered ICRC access to these prisoners. In exchange for prisoner access, the ICRC stands accused of compromising its alleged neutrality and breaking a law.

The laws of war, in the broadest sense, view terrorism as the intentional and unlawful use of violence and intimidation, usually against civilians, for a political, religious, or ideological purpose. The US, Canada, the UK, and the European Union (among other nations) have designated Hamas as a terrorist organization. Acts of terrorism are carried out with the aim of influencing an audience far broader than the immediate victims. Social media is the new handmaiden of terror. Social media has shown itself to be a powerful force multiplier and can spread a terrible story around the world in a matter of moments.

To carry out terrorism, a supply of money is needed. In reply, the International Convention for the Suppression of the Financing of Terrorism (ICSFT) entered into force on Apr. 10, 2002. This treaty criminalizes the act of providing, facilitating, or collecting funds for terrorism. State ratifiers must enact laws that agree with the standards set out in the Convention. Israel ratified this treaty on Feb. 10, 2003. Switzerland, the home to the original Red Cross, now including the ICRC, ratified the treaty on Sep. 23, 2003.

In breach of the ICSFT, the ICRC is accused of delivering to the Israeli-run prison in Ramallah (West Bank) accused terrorists’ “pay for slay” stipend applications. According to Palestinian Authority regulations, terrorists are reportedly entitled to payments of the equivalent of $387 per month. This increases over time to $2,990 monthly.

ICRC Rule 124 states that in international armed conflicts, the Red Cross must be granted regular access to all persons deprived of their liberty to verify the conditions of their detention and to restore contact between those persons and their families. Under international law, the ICRC is an association governed by Article 60 of the Swiss Civil Code. This signifies that the ICRC, as an international humanitarian organization, is a legal person and as such, the ICRC may also be liable for criminal sanctions. The law grants the status of personhood to certain entities in exchange for regulating them through such legal remedies. The ICRC, as a legal “person,” can thus enter into contracts, breach contracts, own property, and be sued or sue another person. Legal persons can also commit crimes and face charges that can make them subject to criminal punishments.

Moreover, under the doctrine of respondeat superior, an employer may be liable under civil — and in some circumstances, criminal — law for the actions of employees even if the latter are acting on their own, so long as the disputed behavior was committed within their scope of employment. The ICRC may therefore be liable for the illicit actions of any of its employees.

As a general principle, a non-citizen person is bound by the laws of the country they visit, including the protections of the law. As established by the Universal Declaration of Human Rights, non-citizens also have certain protections rooted in their fundamental human rights; specifically, they should be protected from arbitrary killings, inhuman treatment, slavery, arbitrary arrest, unfair trial, invasions of privacy, refoulement, forced labor, child labor, and violations of humanitarian law. In the case of the ICRC, employees acting within Israeli jurisdiction are legally bound by the laws of Israel.

If the ICRC is breaking an Israeli law enacted through Israel’s ratification of the Convention for the Suppression of the Financing of Terrorism, the ICRC may be guilty of a crime. ICRC employees, of course, have rights as outlined by the UDHR. But none of these rights can be interpreted as protecting the freedom of ICRC employees to facilitate payments to accused terrorists.

Israel has a right to bring a criminal charge against the ICRC as the ICRC is a legal person that appears to be in violation of Israeli law. Organizations like the ICRC describe themselves as humanitarian. How could a truly humanitarian organization justify facilitating payments to accused terrorists?

Joel Zivot is a practicing physician in anesthesiology and intensive care medicine and a senior fellow in ethics at Emory University in Atlanta, Georgia. Zivot is a recognized expert who advocates against the use of lethal injection in the death penalty and is against the use of the tools of medicine as an arm of state power. Follow him on “X”/Twitter @joel_zivot

Ruth Oratz is a medical oncologist and Professor of Clinical Medicine at the NYU Grossman School of Medicine. She is on the Board of the American Jewish Medical Association and has a background in medical ethics and history. 



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