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Source: United Nations Office at Geneva (UNOG)
Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP)
4 April 2012



INTERNATIONAL MEETING ON QUESTION OF PALESTINE DISCUSSES TORTURE AND ILL TREATMENT IN ISRAELI PLACES OF DETENTION
Suggest requesting the International Court of Justice to give an advisory opinion on the question of the status of Palestinian prisoners
4 April 2012


The International Meeting on the Question of Palestine met this morning in plenary to discuss the legal status of Palestinian political prisoners in international law. The Committee heard from experts on a range of issues, including on the legal status of Palestinian territory, the legitimacy of Palestinian resistance, the question of political prisoners and prisoner of war status, and possibilities of bringing the case of Palestinian prisoners before the International Court of Justice.

John Dugard, former Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory, Commission on Human Rights Professor on International Law, Leiden University, Amsterdam, said that Israel did not recognize Palestinians who took a direct part in hostilities against the occupying Power Israel as political prisoners and termed them ordinary criminals, security prisoners or terrorists instead. There were many forms of torture against Palestinian prisoners in Israeli prisons, including violent beating, sleep deprivation, humiliation, threats of rape and other, said Yaser Amouri, Professor of international public law, Faculty of Law, Birzeit University, Ramallah, Palestine.

Nasser Al Ryyes, Legal Advisor, Al-Haq – Law in Service of Man, Ramallah, spoke about the International Court of Justice and the precedents and rulings that Palestinians could use in their dealings with Israeli and other authorities, until their status as full-fledged United Nations Member State was confirmed. Shawki Al Issa, Director, Ensan Center for Democracy and Human Rights Betlehem, proposed some measures that could be taken by the United Nations and the Committee to ensure the protection of rights of Palestinian prisoners, including through respecting decisions of the International Court of Justice, following up on what was going on in Israeli places of detention and continued consideration of Palestinian prisoners by the Human Rights Council. Palestine had a number of human rights mechanisms and recourse to justice mechanisms it could use, said Jawad Ammawi, General Director of Legal Unit, Ministry of Prisoners’ Affairs, Palestinian Authority Ramallah, such as United Nations resolutions, special procedures and the Human Rights Council.

In concluding remarks speakers said said that this meeting was an excellent opportunity to understand how important it was for Palestine to end the legal discussion about the status of Palestinian prisoners and address herself to the International Court of Justice. 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.

Representatives of the Hebron University, Palestinian Liberation Organization Negotiation Unit in Ramallah, and the Palestinian Centre for Human Rights in Gaza, took the floor in today’s meeting.

The International Meeting on the Question of Palestine will resume its work at 3 p.m. this afternoon, when it will consider the issue of Palestinian political prisoners and the Israeli-Palestinian political process, and close its two-day session.

Plenary Statements:


JOHN DUGARD,
former Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory for the United Nations Commission on Human Rights and Professor of Public International Law at Leiden University, Amsterdam, said that yesterday (3 April 2012) a prosecutor at the International Criminal Court ruled that Palestine did not qualify as a State under the United Nations Charter in order to allow the International Criminal Court to consider crimes committed under Operation Cast Lead (the armed conflict that took place in the Gaza Strip between 2008 and 2009). The ruling was extraordinary because the decision could have been made in half an hour, but had instead taken three years. One could only imagine all the political considerations that had been taken into account, Mr. Dugard said. He called on the Palestinian Authority to apply for Full State status under the charter of the International Criminal Court. Mr. Dugard drew a comparison between Israel and apartheid regime in South Africa regarding the killing of political opponents, as more Palestinians had been killed in targeted assassinations of combatant than had been judicially executed in South Africa. Israel was a state that practiced capital punishment in an arbitrary and capricious manner without a trial.

Regarding the status of Palestinians who took a direct part in hostilities against the occupying Power, Israel, and who therefore qualified as combatants, Mr. Dugard said that Israel did not recognize them as political prisoners. Instead, they were labelled as ordinary criminals, security prisoners, or most frequently, terrorists. To confer prisoner of war 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. The International Court of Justice had confirmed that the Palestinian people had the right to self-determination and it was clear they were subject to alien occupation and possibly colonial domination as a result of the oppressive presence of some 500,000 settlers in the West Bank and East Jerusalem. The practical implications of prisoner of war status were not that important; it was the symbolic or political implications of the status that was important. Prisoners of war 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. Most combatants were tried by military courts despite the preference of the international humanitarian law for impartial civilian courts. Military courts lacked independence, sat in inaccessible places and applied inaccessible military law 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. Administrative detainees were another category of political prisoners that required attention: over 300 Palestinians were being held without trial or prisoner of war status, which violated both humanitarian and human rights laws.

YASER AMOURI,
Professor of Public International Law, Birzeit University, Ramallah, Palestine, said that prisoner of war 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. The contentious question was to what extent did prisoner of war status apply to Palestinian prisoners in the situation of Israeli occupation. Following the 1993 Oslo Accords a new legal situation had arisen as the Palestinian National Authority became an independent entity and an administrative authority for at least part of the occupied West Bank and the Gaza Strip. Since 1967 there been 84 documented cases of Palestinians, many with prisoner of war status, who had been executed after being captured by Israeli occupation forces, including 59 cases since the beginning of the Al-Aqsa intifada in September 2000.

Torturing prisoners of war was prohibited and a grave violation of the Fourth Geneva Convention. Israel had continued a policy of torture and paid no attention to the rules governing treatment of prisoners. Israel used torture and ill treatment to obtain information or evidence against detainees. 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 included 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 explain the danger that Israeli practices presented for Palestinian prisoners and to compel Israel to respect and apply the relevant provisions of international law.

NASSER AL RYYES,
Legal Advisor, Al-Haq – Law in the Service of Man, Ramallah, said on the legal status of Palestinian territory, that under international law, the Palestinian territories were occupied and that the Fourth Geneva Convention and other principles of international humanitarian law applied. Israel’s failure to recognize the legal status of the Palestinian territories as occupied and its refusal to enforce and apply the relevant rules of international law, did not exempt it from international responsibility and legal accountability for its violations of those Conventions. Concerning the legitimacy of the Palestinian resistance, Mr. Al Ryyes said that the United Nations had adopted a number of resolutions defining the right to self-determination, resistance and statehood of the Palestinian people. According to those resolutions, denying the prisoner of war status to Palestinian prisoners was illegal. Mr. Al Ryyes noted that the question of prisoner of war had not been raised in its entirety at the International Court of Justice, which so far had only considered elements of the status.

The legal commitments and principles confirmed by the International Court of Justice in its rulings so far that could be in the interest of Palestinian prisoners of war included respect of human dignity, prohibition of cruel and severe punishments, guarantee of fair trial, respect for the rights of prisoners and the principle of proportionality between crime and punishment. Other important principles confirmed by the International Court of Justice concerned individual responsibility for breaches of norms and standards of international law, and that all States were bound by the rules and principles of international humanitarian law regardless of their ascension to relevant international conventions. Those were precedents that Palestinians could use in their dealings with Israeli and other authorities. The International Court of Justice was open only to United Nations Member States; not being a Member State, Palestine had no right to use that mechanism and 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.

SHAWKI AL ISSA,
Director, Ensan Center for Democracy and Human Rights Bethlehem, said that the United Nations had accepted Israel as a member and peace-loving nation, despite its refusal to implement relevant United Nations resolutions concerning Palestine and continuing occupation of Palestinian territories. The work of the United Nations and its bodies were ruled and governed by policies of states and the international law, and the principle of balancing the powers was more prevalent than the respect for international law. United Nations bodies had adopted almost 200 resolutions and decisions on the rights of Palestinian prisoners and detainees. Even though those resolutions used different terminology, they all called for the application of Third and Fourth Geneva Conventions in the Occupied Palestinian Territories. Despite that Israel refused to comply with any resolutions. What could be done to ensure Palestinian rights throughout the United Nations mechanism?

The decisions of the International Court of Justice must be respected, and the United Nations General Assembly must agree to refer the decision on Palestinian prisoner of war status to the International Court of Justice 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. It was not to be forgotten that the Palestinian prisoners were subjected to grave violations of the Third and Fourth Geneva Conventions and the General Assembly should follow up on what was going on in Israeli places of detention. 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 and denied. The Committee should take the initiative and devise a comprehensive programme of work with practical steps to be implemented by all relevant United Nations bodies and mechanisms in order to reach the point of respect for the minimum rights of detainees.

JAWAD AMMAWI,
General Director of Legal Unit, Ministry of Prisoners’ Affairs, Palestinian Authority Ramallah, said that the rights of Palestinian prisoners were violated on a daily basis and that Israel had never been held accountable for those violations. That had encouraged Israel to continue those practices, and it had recently forced prisoners to submit to DNA tests in direct violation of international law. Israel had not given thought to international instruments that could be applied. Israel continued to violate international law and continued to reject the calls of the international community to apply relevant provisions of the international law. Several reasons prevented Palestinians from recourse to international instruments; they didn’t hold much promise for the Palestinian state, which was why the Palestinian National Authority had requested recognition of Palestine as a full-fledged Member State of the United Nations, which would enable it to joint a number of international organizations.

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 lawyers and families had greater access to international instruments 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. Impunity was prevalent and the legal authorities kept silent on the torture and ill treatment of prisoners in Israeli centres of detention. Mr. Ammawi recommended the General Assembly set up a special tribunal to study crimes committed by Israel and encouraged Switzerland to continue with the organization of the Conference of High Contracting Parties to the Fourth Geneva Convention.

Discussion between organizations and Committee Experts


The organizations, experts and academics who had made statements then addressed questions to the Committee. A speaker asked what was needed to gain prisoners of war status, and whether the Fourth Geneva Convention was indeed applicable. Regarding the special procedures of the Human Rights Council, a speaker raised the need to for greater staffing and resources in the Office of the High Commissioner for Human Rights, in order to follow up on the Palestinian question. An organization asked Experts to provide further information on the application of the Rome Statute and to comment on what specific obligations recognition of prisoner of war would create on third parties.

A Committee Expert said that if Palestinians were treated as prisoner of war they would be kept in custody until the end of hostilities and their conditions would remain as they were today. This meant that no immediate material benefit could obtain from becoming a prisoner of war; the benefit was a symbolic one because a prisoner of war was seen as a member of movement fighting for self-determination. This was an important consideration. On question concerning the applicability of the Fourth Geneva Convention, the Expert said that the difficulty was that the Third Geneva Convention made it clear that only combatants of state parties were entitled to protection under this instrument. Any decision would have to refer to the 1977 Additional Protocol and extension of the coverage of the Third Geneva Convention to situation of fight against foreign occupation. On the question concerning the International Court of Justice, it decisions and opinions were ignored, largely because the United States of America hadn’t agreed with the decision. On the use of universal jurisdiction in prosecution of war crimes, the Expert said it was becoming very unpopular mainly to protect Israeli military and political leaders. There should be more attempts to use universal jurisdiction, but the Expert was not very hopeful.

Another Expert said there was indeed a negative impact of conferring prisoner of war on Palestinian prisoners in a sense that they would not be released before the end of hostilities; but they were under very harsh sentences at the moment, and imprisoned for 300 or 400 years. Status of prisoner of war might make a real difference for them.

Concluding remarks


NASSER AL RYYES,
Legal Advisor, Al-Haq – Law in Service of Man, Ramallah, said that this meeting was an excellent opportunity to understand how important it was for Palestine to address herself to the International Court of Justice, to determine the status of Palestinian prisoners, both of combatants and civilians. This would be also important to know which of the international mechanisms could be utilized to hold Israel accountable for violations of international law. Palestine needed to move from studying the legal status to actually obtaining rights and status.

SHAWKI AL ISSA,
Director, Ensan Center for Democracy and Human Rights Betlehem, said as Palestinians were not in a position to adopt a piecemeal policy. What Palestine wanted was to see implement of international law, with all its consequences. Palestine needed to end legal discussion about the status of Palestinian prisoners in Israeli jails, and ask for the decision of the International Court of Justice.

JOHN DUGARD,
former Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory, Commission on Human Rights Professor on International Law, Leiden University, Amsterdam, drew the attention of the Committee on the excellent book about the life of Palestinian prisoners in Israeli prisons called Threat, which offered a wealth of information on the subject. Important role of the International Committee of the Red Cross had not been mentioned today; it was important that the complaints about conditions in prisons be brought to their attention to see if they could remedy the situation. The International Committee of the Red Cross was at the moment the only international body with the necessary prerequisites.
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For use of information media; not an official record
M12/10E

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