Audrey Bomse*
INTRODUCTION:
Since 1967, well over 650,000 Palestinians from the West Bank and Gaza have been detained by Israel for resisting the Occupation. This constitutes approximately 20% of the total Palestinian population in the Occupied Territories and 40% of the total male population.[1]
Approximately half a million Palestinians have been prosecuted in Israeli courts. An extraordinary percentage of them, over 95 percent, have been convicted. Thousands of others have been held without charges or trial.
Prison is a central feature of Palestinian life. Often the issue of Palestinian prisoners is looked at exclusively from a humanitarian perspective. International agencies and human rights organizations focus on conditions inside prisons, the use of torture and the practice of administrative detention. The imprisonment of thousands of Palestinians is rarely analyzed in a political context. However, to understand the importance of the issue of prisoners today in Palestine, we need to see it in context. The Israeli Occupation is a system of control which affects every aspect of Palestinian life: control of land, resources and lives. Prison plays a critical a role in enforcing this system of control. Mass imprisonment is a conscious Israeli policy aimed at demoralizing and defeating the Palestinian people. It is designed not only to punish, but also to intimidate and render the population passive by convincing it that resistance is useless. Imprisonment also serves to gather information about and to control Palestinian political activity.
Because of the importance imprisonment plays in the Palestinian national struggle, the release of the Palestinian prisoners has become a key issue that must be resolved before any real progress can be made towards a just and lasting peace between Israel and Palestine. One of the principal causes of the al-Aqsa intifada was the Palestinian prisoners and the failure of the Oslo peace process to bring about their release. The Israeli authorities know that peace is not possible without the prisoners’ release and have used the issue as a bargaining chip, occasionally releasing a few hundred prisoners and detainees in well publicized “good will” or “confidence building gestures.” Most of those released were either due to go home soon anyway or had never been charged at all. These have all been empty gestures by Israel, aimed at influencing world opinion.
There remain over 7,500 incarcerated Palestinians.[2] Many of them have never been charged, no less convicted of any criminal or security offense, and have been detained indefinitely, under administrative detention orders. Included among those detainees is the pivotal national political cadre who mobilized the resistance. Others have been released without ever being charged, after days or even weeks in which they were subjected to coercive interrogation and were confined in inhumane conditions. Still others have been treated as criminals, as Israel has labeled criminal every act of resistance to the military occupation.[3] They have been tried in military courts, where the procedures are summary and lacking in due process. The majority of sentenced Palestinian prisoners are serving long sentences, including multiple life.
Palestinians, as every other people in the world, have the right to self-determination.[4] While international law is silent on the rights of an occupied people to resist an occupation that flagrantly violates their most fundamental rights and infringes their self-determination, such rights logically flow from the general support given to the decolonization process and from the related legitimacy of efforts by colonized peoples to engage in struggle, including armed struggle. The right – both legally and morally – of a people to oppose occupation is thus derived from the right to self-determination. Moreover, the duration of the denial of a people’s right to self-determination must be taken into account in evaluating its recourse to force.[5] It is the position of this paper that armed struggle against the Occupation that respects the rules of war is legitimate. It is certainly eminently reasonable. At issue here is the substantive question of both the right of a people living under an oppressive occupation to oppose that occupation and the scope of that right.[6] But it must be emphasized that there can be no discussion of the legality or morality of Palestinian means of resistance[7] without taking into consideration the fundamental relationship between occupying state and occupied people, between the Occupation and the Resistance to it.
This paper will not only point out the countless ways in which Israel violates international human rights and humanitarian law in its handling of Palestinian prisoners, but will also analyze Israel’s continuing ability to flaunt international law with impunity. The State of Israel has ratified the Geneva Conventions, as well as the main human rights treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Rights of the Child (CRC). Rather than denouncing or rejecting these treaties and the principles contained in them, Israel simply denies their applicability to the Occupied Palestinian Territories (OPT)[8] – or it tries to hide its behavior in secrecy. It excuses those violations it admits to as necessary for “security” in the fight against “terrorism.”[9] The United Nations and all impartial international law experts have overwhelmingly supported the view that both the Geneva framework and human rights law are applicable to the OPT.[10] However, that has not stopped the violations from occurring or the Palestinian people from suffering.
International humanitarian and human rights law, like all other law, is not neutral. Those who control the mechanisms of enforcement decide if and how to use them. Therefore, if Israel’s policies and practices concerning imprisonment are to be stopped, they must be understood and fought within a political framework, not simply through appeals to international law. The human rights/humanitarian situation in Palestine has been well documented for many years in UN reports, as well as by Palestinian, Israeli and international human rights and humanitarian organizations. It has been the subject of endless international debate. While the people in many parts of the world may not be aware of the facts, their governments’ failure to act is not due to ignorance, but, rather, to a conscious decision not to act. This decision reflects the double standards that exist in the international legal system, which in principle sets objective standards, but in reality, enforces these standards selectively
ISRAEL’S VIOLATIONS OF INTERNATIONAL LAW
1. Mass Arrests and Arbitrary Detention
Israel arrests Palestinians of all ages – without warrant, probable cause or even reasonable suspicion to believe they were involved in any “criminal” or “security” risk behavior – from cities, villages and refugee camps throughout the Occupied Palestinian Territories (OPT), as well as at military checkpoints and border crossings. Arrests from home typically take place at night, with groups of soldiers banging on or breaking down the door, then entering the house, terrifying its occupants and humiliating the arrestee in front of his family. The arrest process is typically accompanied by degrading and inhumane treatment.[11] Effectively, Israeli soldiers act with total impunity, with no external monitoring or observation.
Some times, during invasions of Palestinian residential areas, all males between the ages of 15-45 are rounded up and detained, both as a form of collective punishment and as a means of obtaining information. For example, on April 2, 2003, the Tulkarem Refugee Camp was invaded by a large force of Israeli soldiers and border police, backed up by attack helicopters and tanks. All men and boys between 15 and 45 were detained and interrogated, one by one. The army eventually detained 13 men who it claimed were “wanted terrorists.” The majority of the approximately 3,000 other men and boys were taken several kilometers away in trucks, dumped out in the streets and ordered not to go back home for three days.[12]
The military orders are written so broadly that, in effect, any Israeli soldier, police officer * even settler * can arrest and detain a Palestinian at any time.[13] Political activity is not a prerequisite for arrest; being Palestinian, particularly male, is the major risk factor. The arresting body, the Israeli Army or the General Security Service (GSS), need not – and indeed does not – inform families of those arrested of either the fact of their arrest or the location of their detention. Children are not spared this treatment,[14] although it is contrary to the Convention on the Rights of the Child (CRC) – to which Israel is a State Party, which stipulates that children under the age of 18 should not be deprived of their liberty except as a last resort and must not be subjected to torture or cruel, inhuman or degrading treatment.[15] The definition of ‘child’ illustrates one of the fundamental differences between Israeli civil law and Israeli military orders and is an example of Israel’s legalized racism. Israeli civil law[16] follows the CRC, which defines anyone under 18 years as a child. In contrast, Israeli military law defines Palestinian children from the OPT who are 16 and over as adults. This is reflected in their arrest, trial and sentences.[17]
The large number of people arrested and detained for a short time with very little interrogation, and the consistent use of degrading treatment, indicate that the aim of such large-scale arrests is to collectively punish and humiliate the Palestinian people. The likelihood that any Palestinian male can be arrested at any time takes a psychological toll on the entire Palestinian population. While the arrests are often arbitrary, the kinds of abuse to which those who are arrested are subjected are not. The fact that the same kinds of abuses are mentioned by almost every arrestee indicates the deliberate and conscious nature of the arrest and detention process.
The detainees have few rights. An attorney need not be provided.[18] Indeed, prohibiting detainees from meeting with an attorney is routine policy and detainees are often held for periods of up to 90 days without being allowed to meet with counsel. The importance of this denial of access to counsel cannot be sufficiently stressed. An attorney could, from the moment of detention, advise the detainee of his/her rights, including the right not to incriminate himself, and could ensure that those rights are respected. Counsel could attempt to ensure that interrogations are conducted properly and that the detainee understands the legal significance of his/her actions. Moreover, the denial of counsel ensures that no external witness will personally observe the abusive treatment or its results.
If charges are not brought, the detainees are often almost literally thrown out of detention, released without identity papers or money, sometimes still handcuffed, many miles from home. These mass arbitrary arrests and detentions violate international human rights and humanitarian law.[19] They violate personal freedom and harm the individual’s family and livelihood. The Geneva Conventions require, at minimum, a “status determination” of each and every detainee before a “competent tribunal.” No person should simply be detained without due process, no matter who that person is.
Palestinian civilians who have not participated in the hostilities are entitled to all the protections of the Fourth Geneva Convention. They should be absolutely protected from violence to their persons and from assaults upon their personal dignity, such as humiliating and degrading treatment.[20] They are entitled, “in all circumstances” to respect for their persons and their honor, and should “at all times” be treated humanely and protected against all acts of violence or threats of violence.[21] No physical or moral coercion should be exercised against them to obtain information from them or from third parties.[22] No protected person may be punished for an act s/he has not personally committed.[23]
The Universal Declaration of Human Rights proclaims that “[e]veryone has the right to life, liberty and security of person” and “[n]o one shall be subjected to arbitrary arrest, detention or exile.”[24] These rights are reiterated in the International Covenant on Civil and Political Rights, Article 9, which also stipulates: “No one shall be subjected to arbitrary arrest or detention. Anyone who is arrested shall be informed at the time of the arrest of the reasons for his arrest and shall be promptly informed of any charges against him.”[25] All of these protections are violated, on a daily basis by Israel.[26]
2. Torture
A large percentage of Palestinian detainees are subjected to systematic abuse and severe mistreatment, often amounting to torture, during interrogation. The methods of torture include beatings, sleep deprivation, denial of medical care, threats of physical or sexual abuse and insults, violent shaking, excessive shackling of hands and feet so as to cause injury, and the infamous shabah, prolonged sitting tied to a small chair in painful positions.[27] Taken individually, particular acts may not constitute torture; but taken together, they undoubtedly do. The pattern of abuse inflicted by different branches of the military and the police is strikingly consistent as evidenced in the testimonies gathered by Palestinian, international and Israeli human rights organizations. These methods are designed to inflict a maximum amount of pain, while leaving a minimum amount of physical evidence. In addition to seeking to obtain information and coerce confessions, the abuse is designed to induce fear and terror. The use of torture is a conscious decision on the part of the Israeli state, part of its overall strategy to undermine all actual or potential resistance to the Occupation. It is aimed both at the individual and at the Palestinian people, as a whole. Torture is more than just the extreme violation of the individual.[28] It is used by one group against another as a means of domination and control. According to the Center for Victims of Torture (a US non-governmental organization): “The purpose of torture is to control populations by destroying individual leaders and frightening entire communities.”[29]
Confessions that result from such coercion are inherently unreliable, especially when given by children. Yet evidence obtained by torture is admissible in Israeli military tribunals. The number of confessions currently obtained by Israeli interrogators, as well as their detail and content is truly shocking. Literally thousands of Palestinians have been sent to prison solely on the basis of their own or third party confessions (by close associates or co-defendants) that implicate them, because such confessions are difficult to contest successfully in court, can outweigh contradictory testimony or even exculpatory evidence and, under Israeli law, need only a scintilla (dvar ma) of corroboration (e.g., any evidence that the confession could be true, such as that the event in question actually happened). Incredibly, the signed confessions are written in Hebrew, a language most Palestinian detainees do not read or understand.
Torture is absolutely prohibited, under any circumstances, by international law. The Fourth Geneva Convention strictly forbids torture and it is described as a “grave breach” under Article 147, making it a war crime. Torture is also categorically prohibited by the Universal Declaration of Human Rights (Article 5), the International Covenant on Civil and Political Rights (Article 7), and the Convention against Torture.[30] Israel is a signatory to these key human rights covenants, and is therefore legally bound by their prohibitions.[31]
Until 1999, the use of torture was legal in Israel. In a landmark ruling,[32] after years of work by human rights organizations and individual lawyers, the Israeli High Court of Justice (HCJ), in September 1999, banned a number of interrogation methods consistently used by the Israeli Security Service (GSS), including shaking, prolonged squatting on haunches, painful handcuffing, shabah, hooding, and the playing of loud music. However the judgment left major loopholes by which methods amounting to torture might continue. Interrogators may still claim the “defense of necessity.” Only means “other than that which is inherently required by the interrogation” are forbidden; sleep deprivation under intensive interrogation and other forms of “moderate physical pressure” are not. In November 2001, the UN Committee Against Torture concluded that what Israel defines as moderate physical pressure “is still torture and violates the UN Convention Against Torture.” The consistent reports of torture from Palestinian detainees reveal that even the High Court ruling of 1999 is no longer being followed.[33] It is probably impossible to prevent torture through a court ruling, particularly one which is so limited in scope. Only the absolute prohibition of torture by law can prevent its use in the future.
Using the excuse of security and defense of necessity, and trying to frame the debate in terms of the “ticking bomb,” Israel justifies its continuing widespread use of physical and psychological abuse. In response to criticism from the international community (UN committees, human rights organizations, etc.), it simply denies that it practices torture. This debate has gone on for at least 30 years and will likely continue.
3. Conditions of confinement
Israel’s violation of minimum basic international human rights and humanitarian law standards regarding the conditions of confinement of Palestinians is systematic. The basic rights, health and human dignity of Palestinian prisoners are regularly abused, without even an attempt to cover up the wrongdoing. Israeli prisons and detention centers are severely overcrowded; detainees are regularly forced to sleep on the floor. The isolation, poor sanitary conditions, inadequate medical care, food and housing compound the problem. Some facilities, like the notorious Ketziot detention camp (Ansar III) in the Negev desert, consist entirely of tents, with little or no protection from the harsh desert weather. DCI-Palestine reported that in May 2003, 120 people at Ansar III, including 28 children, were forced to share two rundown showers and four toilets. Many are housed in cells that are insect and rat-infested. Palestinian child detainees are sometimes confined with criminal adults,[34] and most are denied access to any sort of education. Despite the efforts of the International Committee of the Red Cross (ICRC), family visits to prisoners are either completely denied or made near impossible by Israel’s repeated closure of the Occupied Territories. Lawyers from the OPT are similarly prevented from seeing their clients. Palestinian prisoners regularly protest their inhumane conditions of confinement and their non-violent protests are often put down by Israeli police using excessive force.
The Fourth Geneva Convention requires that protected persons accused or convicted of offenses enjoy conditions of food and hygiene sufficient to keep them in good health and receive all necessary medical attention.[35] In addition, United Nations Standard Minimum Rules for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, and the Basic Principles for the Treatment of Prisoners are all binding on Israel to the extent that the norms set out in them explicate the broader standards contained in human rights treaties. They require adequate housing accommodations, with due regard paid to climatic conditions and minimum floor space, adequate lighting and heating, adequate sanitary and shower facilities, clothing and bedding, and adequate food and medical services. Family visits[36] and regular confidential visits by counsel are mandatory.
In addition, Israel arrests Palestinians in Palestinian territory and then transfers them to detention centers and prisons inside Israel. This constitutes forcible transfer of these prisoners from occupied territory to the occupying state, in clear contravention of the Fourth Geneva Convention, Articles 49 and 76.[37] This prohibition is part of international customary law and is clearly binding on Israel. Article 147 states that violation of Article 49 is a “grave breach” of the Convention and constitutes a war crime.[38]
4. Administrative detention
There has been massive use of detention, without charge or trial, of Palestinians authorized by administrative detention orders, rather than by judicial decree. While administrative detention is permitted under international law, it is tolerated only as an exceptional measure “if the security of the Detaining Power makes it absolutely necessary.”[39] Due to the serious injury to due process rights inherent in administrative detention and the obvious danger of abuse, rigid restrictions have been placed on its application. Its overuse violates the Fourth Geneva Convention (Article 42), as well as the Universal Declaration of Human Rights (Articles 9-10) and the International Convention on Civil and Political Rights (Articles 9(1), 14). It cannot be used as punishment. It may only be resorted to when other, less severe measures have proved ineffective. It must never be applied collectively, but only on an individual basis, relying on suspicions against the particular person. Administrative detainees must be provided with proper housing, clothing, and food and regular family visits; they must be allowed to continue their work and studies, to the extent possible. Israel blatantly ignores all of these restrictions.
The numbers of administrative detainees alone shows how much the procedure is abused: as of February 29, 2005, there were 855 Palestinian administrative detainees.[40] Administrative detention is used as a means of collective punishment during times of conflict. It is also used to punish those against whom there is not enough evidence to bring to trial, or even to intimidate lawyers, other human rights workers,[41] and political leaders.
While each administrative detention warrant must undergo a military judicial review, this summary proceeding in which basic due process rights – such as the right to be informed of the allegations (if any) against them and to present a defense – are non-existent, does not prevent misuse of the measure, as the overwhelming number of warrants are approved. Administrative detention is renewable indefinitely every six months, so the detainees do not know when they will be released. While most detainees receive a six-month administrative detention order, some have served years. Administrative detainees are often subjected to torture during interrogation and do not have the right to remain silent. Basic rights, such as the right to counsel, to be brought promptly before a judge, and to meaningfully contest the detention are missing. The evidence forming the basis of the order is secret and is not made available either to the detainee or counsel. Clearly, such detention seriously infringes upon the individual’s right to protection from arbitrary arrest and entitlement to a fair and public hearing. Furthermore, because Palestinian political and community leaders have been particularly targeted, Palestinian society as a whole has been negatively impacted.[42]
5. The Military Injustice System
The Israeli military court system was established on the third day of the Six Day War in 1967, in one of the first official acts of the military administration of the occupied territories. This indicates the importance that the state of Israel attaches to the use of law (and also indicates how prepared Israel was for occupation). Palestinians in the Occupied Territories are under a system of military justice that gives them rights that are far inferior to those of Israelis. They are arrested, prosecuted, tried and imprisoned within the Israeli military system, which also appoints and administers the bodies which hear any appeals, except those made to the Israeli High Court of Justice (HCJ).[43]
Individuals charged with security violations, political or other offenses are detained in accordance with military orders and are tried as criminals in military tribunals that fail to meet international fair trial standards. The military administration has never published a comprehensive compilation of all military orders in force in the territories. Palestinians are not provided with legal representation. If the defendant is not represented by an attorney, the military court simply proceeds without one. There are no special courts for Palestinian children and children above the age of 12 appear before regular military tribunals. The Judge Advocate General is both the prosecuting authority and the judge, thus denying Palestinians a fair hearing before an independent and impartial tribunal.[44] Evidence obtained through torture is admissible. The system includes judges who are not lawyers.[45] All this is in clear violation of international human rights and humanitarian law, which mandates access to adequate legal representation, as well as a fair trial. The military courts issue prison sentences based not on objective legal standards, but on Israeli policy objectives. which are influenced by the prevailing political situation.[46] Justice is not done, nor does the system even make the effort to create the impression of doing justice.
With the start of the second intifada in 2000, the conditions in the military courts deteriorated to an all-time low. The military judicial system became a legal “assembly line,” where the chances of a Palestinian getting a thorough and professional hearing are just about nil. The system became so severely over-burdened with the huge number of detainees and court cases that some judges were hearing 10 cases a day.[47] Furthermore, the vastly heightened security measures imposed during the intifada severely impacted lawyers’ abilities to do their work. Palestinian lawyers can only appear in courts in areas near where they live, assuming they can get the necessary permits to enter the military compounds. Accessing detention facilities and even having face-to-face meetings with witnesses and families of clients has become exceedingly difficult, while accessing clients in prisons located in Israel has become impossible.
Over 95 percent of Palestinians prosecuted in Israeli military courts are convicted. Of the convictions, approximately 97 percent are the result of plea bargains,[48] both because most defendants have signed confessions and because of the near impossibility of successfully contesting charges at trial, due to the evidentiary weight of confessions, the difficulty of challenging coerced confessions, the use of “secret evidence” that is unavailable to defense lawyers, and the tendency of military judges to prefer evidence and testimony provided by military prosecutors. While plea bargaining gives individuals who have admitted guilt the best sentence they could hope for under the circumstances, the politics of plea bargaining contradicts the politics of resistance.[49] It is a strategy of concessions, in which the defendant concedes not only guilt, but also the legitimacy of the tribunal, as well as the law. Arrest is generally seen as a foreclosing of political opportunity and the courts are regarded as the place where resistance ends.
THE FAILURE OF INTERNATIONAL LAW AND INTERNATIONAL INSTITUTIONS TO PROTECT THE PALESTINIAN PEOPLE
Israel has been able to commit widespread, systematic violations of international humanitarian and human rights law with apparent impunity from international censure or pressure. It has done this by manipulating international law and the UN bodies responsible for overseeing compliance. Ever since the Occupation began in 1967, UN bodies have received extensive and thoroughly documented reports detailing Israel’s violations. Israel’s response is that the various international treaties and human rights instruments are not applicable in the OPT. Israel refuses to cooperate with UN missions and fact-finding bodies investigating its behavior. It has avoided acknowledging non-compliance with its legal obligations and reporting requirements. Everything it does has been justified as self-defense, necessitated by ‘security.’ Israel has manipulated the entire UN system, consistently and flagrantly defying the will of the UN with regard to Palestinian rights for more than five decades.[50]
The UN has established two mechanisms to monitor Israel’s conduct in the OPT. In 1968, the General Assembly established the UN Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories (Special Committee). From the start, Israel has consistently objected to the existence of this Special Committee, has refused to cooperate with it and has even refused it entry into the OPT. Each year, the Special Committee is forced to meet in neighboring Arab countries to hear from victims of human rights abuse and human rights defenders before issuing its annual report. In 1993, the UN established the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, which is mandated to investigate Israel’s violation of the principles of international humanitarian and human rights law. Israel objects to the Special Rapporteur’s mandate and refuses it any and all cooperation.
Over the years, Israel has similarly refused to cooperate with UN committees mandated to monitor implementation of major human rights treaties. The Committee Against Torture, established by Article 20 of the CAT, for instance, is mandated to inquire into the practice of a State Party if that Party has agreed to accept that article. When it ratified the CAT, Israel refused to accept this article. It similarly declined to accept Articles 21 and 22 which establish a mechanism for the Committee to receive complaints about a State Party’s failure to comply with its obligations from other States Parties or from individuals within the State Party’s jurisdiction and then to request that the State Party address those concerns in writing. In its report to the UN Committee on the Rights of the Child in 2002, Israel refused to provide any information or comment concerning its actions in the OPT, despite the Committee’s specific request of it to do so. The Committee rejected Israel’s arguments concerning the non-applicability of the CRC to the OPT, but since there is no enforcement mechanism to compel Israel to comply with the treaty’s compulsory reporting requirement, no further action was taken.
The UN Working Group on Arbitrary Detention was established by the Commission of Human Rights to hear individual complaints. As early as 1992, the Working Group held that the administrative detention by Israel of two Palestinians[51] “cannot be justified on any legal basis. It is declared to be arbitrary, being in contravention of articles 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles 9, 14, 19 and 21 of the International Covenant on Civil and Political Rights to which Israel is a party.”[52] The decision went on to request that the Government of Israel take the necessary steps to remedy the situation.[53] Israel had not even deigned to respond to the allegations. Needless to say, it took no steps to remedy the situation, either by releasing the individual complainants or limiting its widespread use of administrative detention. In 1997, Ribhi Qattamesh, a lawyer and journalist serving his seventh consecutive detention without being brought to trial, along with two other Palestinians[54] similarly detained for unknown reasons, complained to the Working Group. Israel did not reply. The Working Group Opinion concluded: “Prolonged periods of administrative detention without remedy renders the detention illegal. The detainees have a right to be tried without undue delay.”[55] Its request that Israel remedy the situation was again met by disdained silence. ‘Abd Al-Rahman ‘Abd Al-Ahmar complained in 1997 of his arbitrary detention by Israel, during which he was subjected to torture. Israel did not respond to the allegations. The Working Group held that Al-Ahmar had a right to be tried “without undue delay.”[56] Not only was Al-Ahmar neither tried nor released following this decision, but he was subsequently detained administratively several different times. All told, Al-Ahmar was held in administrative detention for a total of 11 years.[57]
In April 2002, the UN Secretary-General proposed establishing a fact-finding mission to gather information about conditions in the Jenin Refugee Camp before and during Israel’s military occupation. The proposal was endorsed by the Security Council. However, because of Israel’s refusal to cooperate and allow the fact-finding team to enter the OPT, the Secretary-General had to disband this team. The General Assembly then commissioned its own report on the situation in Jenin, but Israel refused to provide it with any relevant information and refused it entry into the occupied territories.
The pattern is clear, as is the conclusion that international human rights/humanitarian institutions have failed to end Israel’s abuses, including the commission of war crimes and crimes against humanity.[58] In failing to take action, states around the world have violated their own obligations under international law.[59] For international human rights and humanitarian law to be enforced, governments around the world need to show the political will to take concrete action to ensure compliance with international standards. It is this political will that has been lacking. All sorts of political and economic considerations have influenced governmental decisions and trumped human rights and humanitarian considerations. Not only have major states passively accepted Israel’s violations of international law, by declining to enforce it, several states – most notably the United States –have actively supported Israel militarily and financially, thus facilitating its violations. The international community’s failure to rise to its obligations has pointed out a fundamental problem in the international legal framework. It also has weakened efforts to promote societies based on respect for human rights and the rule of law. The human rights discourse is in danger of becoming self-defeating as words like democracy, liberation and freedom are hypocritically used to describe their opposite.
International civil society must shoulder the task of generating the governmental political will to enforce international human rights and humanitarian law. Simply documenting Israel’s human rights and humanitarian law violations is not enough. They are not occurring in a vacuum; they are deliberate policies designed to maintain the Occupation. Only when a sustained popular movement calling for sanctions, similar to the one which eventually ended governmental support for the apartheid regime of South Africa, comes into effect will things change. Only then will the Occupation and the abuse it entails, some of which have been outlined in this paper, end.
[*Audrey Bomse has been a lawyer for 25 years. She practiced prisoner rights law for 10 years, first at the NJ Public Advocate’s Office, then at the Prisoners Legal Clinic at Seton Hall Law School. Following that she worked for 3 years with various Palestinian human rights organizations, setting up a settler violence hotline and analyzing the treatment and status of Palestinian political prisoners. She currently works for the Italian Consortium of Solidarity’s Torture Prevention Project, which aims to form a coalition of local (Palestinian and Israeli) NGOs to develop joint strategies to combat torture.]
ENDNOTES [1] Addameer Prisoners’ Support and Human Rights Association Press Release, 17 April 2003. See website at www.addameer.org. During the first intifada, between 1987-93, Israel/Palestine (i.e., Israel, West Bank and Gaza) had the highest per capita incarceration rate in the world.
[2] The exact number as of February 29, 2005 was 7705, of which 855 were administrative detainees. Mandela Institute website, http//www.mandela-palestine.org.
[3] Military Order 378, Sec. III 65(1), for instance, makes it a crime to “behave in an insulting manner towards any of the authorities of the Israeli Defense Forces within the region or any of its representatives.” Israeli Military Orders In the Occupied Palestinian West Bank, Jerusalem Media & Communication Centre, 1995.
[4] International Covenant on Civil and Political Rights, Art. 1.
[5] The UN General Assembly has passed numerous resolutions stressing the right of people living under foreign domination to combat and resist that occupation for as long as it continues. See Resolutions 3070, 3103, 3246, 3328, 3481. The specific right of the Palestinians to realize their right of self-determination has also been recognized by the international community. See General Assembly Resolution 2787, of December 6, 1971, reaffirmed by UN General Assembly Resolution 2955 of December 12, 1972, which “confirm[s] the legality of the peoples’ struggle for self-determination and liberation from colonial and foreign domination and alien subjugation”, in southern Africa and Palestine” and “affirm[s] man’s basic human right to fight for the self-determination of his people under colonial and foreign domination.”
[6] The rules by which international law regulates the conduct of hostilities apply equally to both sides in a conflict, including most importantly, the distinction between combatants and civilians. Both the Israeli occupation regime and the Palestinian liberation movements have violated core provisions of international humanitarian law. Nevertheless, all discussion of violations must take place within the context of the asymmetric war being waged by the Israeli army against an essentially defenseless Palestinian population.
[7] It is the author’s belief that the actions of suicide bombers and those who send and direct them are legally and morally indefensible and politically counterproductive. They undermine the wider Palestinian struggle for self-determination and human rights. Support for the Palestinian resistance to the Occupation from international civil society depends on whether that struggle is seen as moral and just. Solidarity with a liberation struggle means solidarity with the oppressed, with people whose cause is humanitarian and emancipatory. Failure to distinguish between legitimate armed resistance and suicide bombings, as well as other forms of violence deliberately directed at civilians, weakens the Palestinian resistance movement – at the very moment that a sympathetic international consensus is being formed regarding the Palestinian anti-colonial resistance struggle.
[8] The Israeli Government’s official position is that the Fourth Geneva Convention is not fully applicable in the Occupied Territories because the annexation of the West Bank and Gaza Strip by Jordan and Egypt was never recognized internationally, so there was no “legitimate ousted sovereign.” Its position, that a party to the Geneva Convention can invade and occupy a state that is not party to the Convention, or a populated area that is terra nullius, and conduct the occupation without regard to the Fourth Geneva Convention, is inconsistent with the humanitarian purpose of the Convention. Despite their continued refusal to acknowledge the applicability of the Fourth Geneva Convention, Israeli authorities have repeatedly stated their intention to respect its “humanitarian provisions.” Yet, it is unclear what this commitment amounts to in practice.
As far as the applicability of human rights law to the OPT, Israel previous argument that the Palestinian Authority’s control over Area A absolved it of responsibility to implement any of the human rights treaties there is obviously no longer relevant. Since September 2000, Israel has claimed that international humanitarian law and international human rights law are not designed to be applied concurrently and that during times of armed conflict, only international humanitarian law applies. The international community has consistently rejected these arguments.
[9] Since September 11, 2001, the world has been more sympathetic to Israel’s concerns and erroneous parallels have been made between the situation in Israel and the rest of the world.
[10] The international community has repeatedly explicitly held that the Fourth Geneva Convention applies to Israel as the occupying power in the West Bank and Gaza. In 1990, for example, the UN Security Council passed Resolution 681 calling on the Israeli government to “accept the de jure application of the Fourth Geneva Convention” to the occupied territories. In 2001, the UN General Assembly, in Resolution 56/60 reaffirmed that the Fourth Geneva Convention is applicable to the Occupied Palestinian Territories, including Jerusalem and other Arab territories occupied by Israel since 1967. See also UNSC Resolutions 476, 480, 1322, 30 June 1980, 12 November 1980, 7 October 2002. Moreover, in December 2001, the High Contracting Parties to the Geneva Conventions reaffirmed that the Convention is applicable to the Occupied Territories.
[11] On 5 December 2001, Israeli soldiers at the military checkpoint at Al-Matahin crossing in Khan Younis, Gaza, forced six Palestinian passengers in a taxi to get out, remove their clothing, and walk in the cold rain, hands above their heads before they were arrested. The Jerusalem Post, 6 December 2001, p. 2.
[12] James Bennet, New York Times, “Israeli Army Strikes at Palestinians,” 4 April 2003.
[13] Under Military Order No. 378, the law that has governed the arrest, detention and trial of Palestinians since 1970, Palestinians may be arrested without warrant and without ”reasonable suspicion” that they have committed a criminal offense. In April 2002, a new military order, M.O. 1500 was introduced. This order states that ”because of the unusual security situation present today in the area, and as reasons of security in the area and public security require it and for the need to fight against the infrastructure of terror in all its parts,” any “IDF officer of the rank of at least captain or a police officer of the equivalent rank” may ”order in writing the holding of a detainee in detention, for a period of not more than 18 days.” Under Article 3d ”… a detainee will not meet with an attorney during the period of detention.” At the end of the 18 days, a detainee should be brought before a judge, who may extend the incommunicado detention without access to a lawyer. As before, in accordance with Military Order 378, such detention orders may be renewed for up to 90 days Three additional military orders (M.O. 1501, 1502, 1503) all made possible further extensions to the period of detention without access to a lawyer
[14] During the two years 2003 and 2004, Israeli forces arrested approximately 2,000 Palestinian children between the ages of 12 and 18 for throwing stones at Israeli troops. Mandela Institute, Palestinian Juveniles in Israeli Custody, January 2003, available on the website of Mandela at http://www.mandela-palestine.org .
[15] Articles 1, 37.
[16] Sec. 3 of the Israeli Guardianship and Legal Capacity Law (1962).
[17] In 2000, Israeli criminal courts sentenced less than 6% of Israeli child defendants to prison. The rest received alternative sentences, such as fines, supervised probation or placement in special residential facilities for juveniles. See Report of Israel to the UN Committee on the Rights of the Child, 2001. According to DCI-Palestine, military courts sentence the vast majority of Palestinian children over 14 years old to prison – alternative sentences are very rare.
[18] In contrast, Israeli defendants are entitled to legal representation under The Public Defenders’ Regulations of 1998.
[19] Fourth Geneva Convention, Art. 33; Art. 75. See also the International Covenant on Civil and Political Rights, Art 10: “Detainees should be treated humanely and in recognition of their human dignity.”
[20] Art. 3(1) (a), (d).
[21] Art. 27.
[22] Art. 31.
[23] Art. 33.
[24] UDHR, 10 December 1948, Articles 3, 9. Art. 5 prohibits torture and other cruel, inhuman or degrading treatment or punishment.
[25] ICCPR, Art. 9(2).
[26] Mass arbitrary arrests violate Israel’s domestic laws, as well as its self-imposed commitments under international law. According to Section 1 of the Basic Law on Human Dignity and Liberty: “Basic human rights in Israel are based on the recognition of the value of the human being, and the sanctity of his life and his freedom.” Section 2 of this Basic Law, mandates: “There shall be no violation of the life, body or dignity of any person as such.” Mass arrests also violate the Israeli army’s Military Code and policy guide-lines regarding treatment of the civilian population.
[27] See Mandela Institute website, www.mandela-palestine.org for vivid illustrations of these methods of torture. Also see the 23 May 2002 Report by Amnesty International.
[28] Because their personality structure is not yet fully developed, children who are tortured are particularly severely damaged.
[29] www.cvt.org/main.php/InsideCVT/WhatisTorture.
[30] Article 1 of the CAT defines the term “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
[31] Torture is also contrary to Israel’s Basic Law: Human Freedom and Dignity, as well as its Penal Code. See Israeli Criminal Law, 1977, in particular, clauses 277 (1), 277 (2) and 427 (A).
[32] See HCJ 5100/94, The Public Committee Against Torture versus the Government of Israel and the General Security Services.
[33] There has been a decline in the use of some of the most physically brutal torture methods, but an upsurge in the use of new methods, including psychological techniques.
[34] Palestinian children’s rights defenders have argued that it is in the best interests of Palestinian children to be detained with adult Palestinians, as it provides a means of support for the children who have been separated from their families and offers a degree of protection from abuse.
[35] Art. 76. Also see Art. 85.
[36] Principle 19 of the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, adopted by the United Nations General Assembly on 9 December 1988 states: “A detainee or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.”
[37] Article 49 states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” This prohibition is reaffirmed in Article 76: “Protected persons…shall be detained in the occupied country, and shall serve their sentences therein.”
[38] The transfer of these prisoners also aggravates their conditions of imprisonment by making it far more difficult for prisoners’ families to visit them, due to the severe restrictions on Palestinian freedom of movement imposed by Israel and the large geographic distance from the family’s home.
[39] Fourth Geneva Convention, Art. 42.
[40] Mandela Institute for Human Rights, monthly report, February 29, 2005. There were 1171 administrative detainees on January 31, 2003. Monthly Report, January 31, 2003. The number of administrative detainees held by Israel has historically reflected the political situation, increasing dramatically during both intifadas. Well over 14,000 administrative orders were issued to Palestinians during the first intifada. With the start of negotiations that resulted in the Oslo Accords, the number of administrative detainees decreased dramatically to approximately 300, largely Palestinian opponents of Oslo. From 1999 to October 2001, the average number was less than twenty. However, the legal basis for holding administrative detainees remained the same, which enabled Israel to steadily increase the use of administrative detention when the al-Aqsa intifada began. This trend increased greatly during and after Operation Defensive Shield when the number soared again, often to well over 1,000. While during the first intifada, the administrative detention of minors was virtually non-existent, today children – even under the age of 16 – are no longer exempt.
[41] On 23 April 2001, for example, Israeli soldiers arrested Adnan Al-Hajjar, a lawyer at the Al-Mezan Center for Human Rights, as he was returning back to Gaza from Cairo, after taking a training course on drafting legislation. Israeli authorities alleged that Al-Hajjar was involved with Osama bin Laden. Al-Hajjar appeared before a judge on 30 April. He was not charged with any crime, but because the GSS/ISA claimed that there was secret evidence, he was detained for 30 days for interrogation. During his detention, al-Hajjar was chained to a chair and was interrogated 20 hours a day for 14-15 days, with breaks only on the weekends. He was deprived of sleep for four days during the interrogation. He was released on 23 May, without ever having been charged or brought to trial. See PICCR’s Report on the Israeli Violations of Palestinian Citizens’ Rights During 2001, p. 16.
On 10 September 2001, the IDF arrested Dawud Dar-awi, a 27 year-old lawyer. A military judge extended his detention on the basis of a secret file, and he was placed in a small cell and tortured during the interrogation. On 25 October, a six month administrative detention order was issued against Dar-awi, without any charges being brought against him. PICCR, id..
[42] There do, thankfully, appear to be some limits. In January 2004, for instance, Ayid Murar and his brother Naim, organizers of mass nonviolent protests in Budrus against construction of the separation Wall, were arrested by the Shin Bet security service on the grounds that “the intelligence material attributes terror-supporting activity to them.” A military court at Ofer Camp released them, stating:” It is out of the question for the military commander to use his authority to order a person’s administrative detention only because of his activity against the fence.” Haaretz, April 16, 2004, Aviv Lavie, Back to the grass roots.
[43] The right of Palestinians to submit petitions to the HCJ challenging the administrative policies and practices of any state institution, including the military, was established indirectly in 1968 when Attorney General Meir Shamgar chose not to raise the defense of lack of standing of “alien enemies who were inhabitants of territory not under Israeli sovereignty.” Shamgar, “Legal Concepts and Problems of the Israeli Military Government,” p. 43. Granting this right has enabled Israel to claim that the administration of the territories was “enlightened.” Subjecting the military administration to judicial oversight enabled it to argue Israel’s commitment to the rule of law. The reality is, however, that relying on legal concepts such as “military necessity” and “reasonableness,” the HCJ has, in an overwhelming number of cases, found in favor of the state or dismissed Palestinians’ petitions on the grounds that the issues raised are not “justiciable,” or are not fit for judicial review. High Court decisions, by-in-large, serve to legitimize policies and actions of the military.
[44] This is a violation of the Basic Principles on the Independence of the Judiciary, a document adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders, in 1985.
[45] Court sessions are held with 3 judges, all military officers, only one of who must be legally trained, or with a single judge, who is a legal expert, depending on the seriousness of the charges. Disorder in the Court, op.cit.
[46] During the second intifada, for instance, sentences for throwing stones became increasingly severe. Overall, there has been a significant increase both in the length of sentences and the number of long-term sentences handed down.
[47] Ha’aretz, 12/18/01, Disorder in the Court, Amos Harel.
[48] This is in exchange for a concession from the prosecutor to reduce the charges and/or the sentence being sought. However, it also validates the Israeli military and emergency laws under which Palestinian defendants are being tried, as well as the military court’s legitimacy to pass judgment upon them.
[49] In April 2003, some Palestinian prisoners began protesting against the unjust military court system and declared a boycott of all military courts, stating that they are illegal and do not conform to minimum standards of fair trial. Addameer Press Release, 17 April 2003.
[50] Efforts in 1999 and 2001 to uphold the treaty obligation of the parties to the Geneva Conventions to ensure compliance have gotten nowhere because of the opposition of the United States and Israel.
[51] Dr. Rajah Hassan Abdul Aziz Mohana, Mahmoud Muhammad Muhammad Eid.
[52] Working Group Opinion No. 36/1992 (Israel), para. 7.
[53] Opinion 36/1992, op. cit., para. 8
[54] Imad Sabi, serving third detention order and Derar Al Aza, serving his fifth consecutive detention order.
[55] Working Group Opinion No. 10/1998 (Israel), para. 11.
[56] Working Group Opinion No. 11/1998, para. 11.
[57] Several more complaints by detained Palestinians, including that of Khaled Jaradat, filed in 2001, have been addressed to the Working Group with similar results. See Working Group Opinion 23/2001.
[58] Israel’s violations of both international humanitarian and international human rights law are detailed in the report of the Human Rights Inquiry Commission established by the UN Commission on Human Rights, available under the title “Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine,” E/CN.4/2001/121, 16 March 2001.
[59] Article 1 of all four Geneva Conventions requires the High Contracting Parties to respect and ensure respect for the Conventions in all circumstances. Unfortunately, Art. 1 does not define the methods by which the Parties who are not party to the conflict should act to comply with their obligations.
