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Source: Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP)
4 April 2012


The question of Palestinian political prisoners
in Israeli prisons and detention facilities: legal and political implications

Geneva, 2 and 3 April 2012


The two-day Meeting brought together representatives of Governments and intergovernmental organizations, United Nations organs and agencies, civil society organizations and the media. The Meeting reviewed legal and humanitarian aspects of the arrests and detentions of Palestinians by Israel, the occupying Power; considered the status of Palestinian prisoners in international law; looked at the issue of Palestinian political prisoners in the context of the Israeli-Palestinian political process; and discussed ways of strengthening the role of the wider international community, as well as non-governmental actors, in promoting a solution and the reintegration into Palestinian society.

The Secretary-General of the United Nations, in a message delivered on his behalf, said that the Middle East Peace Process was at a dangerous stalemate. He referred to issues on the ground that required urgent attention, including the plight of Palestinian prisoners held by Israel, which numbered approximately 4,400 individuals, including 200 minors, and more than 300 prisoners under administrative detention. The Secretary-General also expressed concern over the arrests of elected members of the Palestinian Legislative Council. He stated that administrative detention should only occur in exceptional circumstances, for short periods and without prejudice to the rights guaranteed to prisoners. He called on Israel to respect its international obligations, including the Fourth Geneva Convention. He said that the release of some Palestinian prisoners to the Palestinian Authority would be an important trust-building measure.

The Chairman of the Committee on the Exercise on the Inalienable Rights of the Palestinian People said that the issue of Palestinian prisoners had returned to the headlines as a result of the courage of the Palestinian prisoners whose hunger strikes had attracted the attention of the international community. He brought to mind the case of Hana Al-Shalabi, who reached a deal to end her hunger strike in exchange for being exiled to Gaza. He stated that international law must be applied in order to put an end to the violence to which Israel subjected its prisoners, to the arrest of minors and to detention without trial. The Chairman also stressed that the issue of Palestinian political prisoners had attained the importance of a permanent status issue and that ending the practice of administrative detention and releasing the long-term Palestinian prisoners incarcerated before the Oslo Accords would be an important gesture by Israel towards facilitating the resumption of permanent status negotiations.

In his keynote presentation, the Minister for Prisoners’ Affairs noted that administrative detention had become a routine part of Israeli policy, rather than a measure of last resort, and that it was an extremely harsh form of treatment, as clearly stated in the Fourth Geneva Convention. He said that since 2000, some 21,000 administrative detention orders had been served on Palestinian citizens, and that there were currently 330 administrative detainees, up from 309 in 2011. The Minister reported that approximately 4600 Palestinians were held in 17 prisons and army camps inside Israel. He stated that Israel denied the prisoners their national, political and human rights. It was torturing prisoners, sexually harassing children, deporting detainees from the areas where they lived and imposing solitary confinement. Armed soldiers with dogs carried out attacks in prisoners’ cells, critically injuring them. Some prisoners were forced to undergo DNA testing. Many were denied the right to obtain adequate medical care, receive family visits, continue education or obtain books. He insisted that the United Nations must use its international status and influence to protect torture victims, imprisoned minors, elderly, elected representatives, disabled and cancer sick prisoners. He presented participants with seven action points, which included:

At the outset of the plenary sessions, invited experts spoke about the situation of children detainees and abuse they endured in Israeli prisons and detention facilities. A legal consultant for Defence for Children International in Jerusalem said that currently 216 children under the age of 18 were detained in Israeli jails and even children below the age of twelve were arrested and exposed to torture and ill treatment. He said that the Israeli authorities completely ignored the Fourth Geneva Convention and tried children by military courts which often ignored or misinterpreted provisions of the Geneva Convention. Israeli forces carried out arrests during the night and transferred children to prisons inside Israel. A child’s parents or legal guardians were not present during the interrogation phase and frightened and disoriented children often made incoherent confessions during those first phases of interrogation. Such actions also contravened the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

Over the past five years large numbers of children and over 2,500 women had been arrested. Many of the children were girls, and they were not given the consideration that needed to be accorded to females. An expert noted that 90 per cent of children released from detention suffered from post-traumatic stress disorder. Approximately 700 children were annually detained, tortured and mistreated in Israeli prisons and detention centres. This constituted a threat to society as a whole, because young people accounted for 41 per cent of Palestinian society. A representative of the Ministry of Prisoners’ Affairs of the Palestinian Authority said that rehabilitation of former prisoners was one of the greatest challenges for the Palestinian Authority and the society as a whole. Over 40 per cent suffered from depression and many former detainees suffered psychological problems and found it difficult to reintegrate into normal life. The greatest issue was finding and creating jobs for released prisoners, particularly in the shrinking labor market.

Participants then discussed the illegal detention of Palestinian parliamentarians as an important aspect of the policies of the occupying Power and the application of Prisoner of War (POW) status. A member of the Palestinian Legislative Council said that the occupying Power used administrative detention indiscriminately and on any occasion and that most of the Palestinian parliamentarians were arrested without any reason. It was stated that Israel’s use of administrative detention systematically and blatantly violated international law. Administrative detention was inherently problematic; it was not intended to punish a person for an offense already committed, but to prevent a future danger. The manner in which Israel used administrative detention was patently illegal. In addition to the practices of indefinite administrative detention and the use of special enhanced interrogation techniques that violated Israeli’s obligations under international law, the rights of Palestinian detainees and prisoners were further undermined by different decisions issued by the Israeli Supreme Court.

Some experts opined that Palestinians who took a direct part in hostilities against the occupying Power qualified as combatants and should be accorded POW status. The International Court of Justice had confirmed that the Palestinian people had the right to self-determination. It was clear that they were subject to alien occupation and possibly colonial domination as a result of the presence of some 500,000 settlers in the West Bank and East Jerusalem. But Israel did not recognize Palestinian combatants as political prisoners. Instead, they were labeled as ordinary criminals, security prisoners, or most frequently, terrorists. To confer POW status would constitute recognition of the fact that there was a conflict between the State of Israel and a people exercising its right to self-determination and statehood. POWs were not treated as criminals but as worthy opponents in a military conflict, as freedom fighters engaged in a war of self-determination whose rights were recognized by international law. Denial of that right rejected the legitimacy of the struggle of the Palestinian people for self-determination. However, if Palestinian combatants were held as POWs they would be held until the end of the occupation, which could be for many years. They would then be released at the same time as those convicted by Israeli military courts and imprisoned by Israel as criminals. Most combatants were tried by military courts despite the preference of international humanitarian law for impartial civilian courts. Military courts lacked independence, sat in inaccessible places and applied confidential procedures with little regard for the rules of due process. International humanitarian law governing the imprisonment of Palestinians was further transgressed as they were held in Israel itself.

Some experts agreed that POW status was extremely important for a person who fell into the power of an enemy State, as defined by The Hague Conventions of 1899 and 1907 and the Geneva Conventions. But the contentious question was to what extent POW status applied to Palestinian prisoners in the situation of Israeli occupation. Following the 1993 Oslo Accords, a new legal situation had arisen as the Palestinian Authority became an independent entity and an administrative authority for at least part of the occupied West Bank and the Gaza Strip. Torturing POWs was prohibited and a grave violation of the Fourth Geneva Convention. Israel had continued a policy of torture to obtain information or evidence against detainees and paid no attention to the rules governing the treatment of prisoners. There were many forms of torture committed against Palestinian prisoners in Israeli prisons, including violent beatings, sleep deprivation, humiliation and threats of rape. Rights to protection during captivity as contained in the Third Geneva Convention were not subject to derogation; it was essential to take action immediately at the highest international and regional levels to ensure the protection of Palestinian prisoners and to compel Israel to respect and apply the relevant provisions of international law.

Participants also discussed what recourses Palestinians had to judicial and human rights mechanisms. It was noted that the question of POWs had not been raised in its entirety at the International Court of Justice (ICJ), which so far had only considered elements of the status. The ICJ was open only to United Nations Member States; not being a Member State, Palestine had no right to use that mechanism to litigate with the State of Israel vis-à-vis its breaches of international law. The only option open to Palestinians was to ask the Court its legal opinion on the status of Palestinian prisoners. Some speakers called on the United Nations General Assembly to refer the decision on Palestinian POW status to the ICJ for an advisory opinion. Waiting was not an option because human beings were in the centre of the issue and were spending their lives in imprisonment. The Human Rights Council could also continue its consideration of the situation of Palestinian prisoners and request a fact-finding mission into conditions in Israeli jails. Even the most basic rights of Palestinian prisoners were violated or denied. The Palestinian Rights Committee was called upon to devise a comprehensive programme of work with practical steps to be implemented by all relevant United Nations bodies and mechanisms in order to ensure respect for the minimum rights of Palestinian detainees.

It was explained that Palestinians were prevented on several grounds from recourse to international mechanisms. Mainly, the Palestinian State was not recognized by most intergovernmental organizations, which was why the Palestinian leadership had requested recognition of Palestine as a Member State of the United Nations, which would enable it to join a number of other international organizations. The admission of Palestine to the United Nations Educational Scientific and Cultural Organization (UNESCO) in October 2011 opened the door for Palestine to ratify key human rights instruments. Palestine could become a party to the International Covenant on Economic, Social and Cultural Rights, and other international human rights treaties. In addition, there were a number of human rights mechanisms and recourse to justice mechanisms that Palestine could use and apply. A number of them were based on the United Nations Charter and other legal instruments. It was important to ensure that lawyers and families had greater access to available human rights mechanisms in order to better document and evidence violations. The Human Rights Council had paved the way for the submission of complaints, individual or group, which were filed once all other remedies had been exhausted. It was also important that the complaints about conditions in prisons be brought to the attention of the International Committee of the Red Cross, which at the moment was the only international body with necessary prerequisites to remedy the situation. One speaker recommended that the General Assembly set up a special tribunal to study crimes committed by Israel. Many participants encouraged Switzerland to continue with efforts to convene the Conference of High Contracting Parties to the Fourth Geneva Convention.

Participants also discussed a proposal for a timeframe for the release of Palestinian prisoners from Israeli prisons as part of the political process. It was noted that when the first negotiations took place with Israel in 1993, the question of prisoners was neglected, and the agreement signed had no provisions for them. Today the Palestinian leadership would not put their signature on any agreement that failed to resolve the issue of prisoners. Experiences in South Africa and Northern Ireland provided good examples of how the issue of prisoners could be resolved in the context of a political solution. Finding a solution to the question of prisoners would be a way of increasing public acceptance of any larger agreement. The issue needed to be dealt with as part of the political process and could be initiated with the release of extremely vulnerable prisoners, such as ill persons, women, children, administrative detainees and those arrested prior to the Oslo Agreement. Any agreement must include provision for the return of the remains of those who died in detention. A further wave of releases should take place upon signature of a framework agreement, and should see the release of over 3,000 prisoners with sentences lesser than life imprisonment and who had not caused any human death. It was also suggested that a Committee be established with representatives of Israel, Palestine and the Quartet that could agree on conditions of detention consistent with humanitarian standards and international law. Israel should commit to complying with that Committee’s findings. Every six to eight months, Israel would release a small number of prisoners as a gesture of goodwill. It was noted that those currently released by Israel were often those almost at the end of their sentences.

One expert recalled the process of releasing political prisoners in Namibia and South Africa in the context of the establishment of Namibia’s independence and the abolishment of apartheid. As for Namibia, the release of all political prisoners was part of Security Council resolution 435 (1978), the implementation of which had been negotiated with all parties concerned. The issue of the release of political prisoners was assigned to Norwegian Professor Norgaard who formulated principles known today as the Norgaard principles. They included issues such as the context of the offence – was it part of a political uprising; the issue of proportionality - whether the act committed related to the political objective aimed at; the legal and actual nature of the offence; and whether the offence was committed on the orders or with the approval of the organization concerned.

In South Africa, as a result of international pressure, the apartheid government had announced in the mid-eighties, it was prepared to release political prisoners who renounced violence. It had also begun informal contacts with members of the liberation movements, both in prison and in exile. A key position of the African National Congress had been that the unconditional release of all political prisoners was central to negotiations. The question of release of political prisoners was of a highly political nature in the negotiations, as both parties needed to send appropriate messages to their constituencies, the international community and to the other party. Prisoner releases were used as bargaining chips and public relations exercises and parties could not agree on the number of political prisoners still in prisons. Based on their experience, many South Africans today were active in boycott and disinvestments campaigns against Israel in solidarity with the struggle of the Palestinian people.

Another speaker in Plenary III stated that the Oslo and Taba Accords had addressed the question of Palestinian political prisoners by setting a framework for their release. However, the agreements did not set the numbers to be released. Israel released a lower number of prisoners than it had committed to; it included criminal offenders and those whose sentences were almost at the end. The Oslo Agreement fell short with regard to the issue of political prisoners, as it did not call for the release of all prisoners and did not deal with the issue of Palestinians arrested after 1993. Palestinian prisoners should not be divided into groups and categories; they should all receive the same treatment accorded to POWs.

In closing, the Permanent Observer of Palestine to the United Nations said that the issue of Palestinian prisoners was a painful and complex subject and part of a long journey of the Palestinian people towards freedom and self-determination. It became clear during the Meeting that the intention of the Palestinian leadership was to seek advice from the international community in the determination of the legal status of Palestinian prisoners. For instance, the applicability of the POW status would have to be further analyzed on the way ahead. He reiterated that Palestine would not sign any agreement or peace treaty without achieving freedom for Palestinian prisoners. For the time being, Palestinian prisoners should be treated with dignity, in accordance with the international humanitarian law and in a manner of civilized societies.


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