Holding Palestinians in Incarceration Facilities Inside Israel A Translation of HCJ Verdict
Update | Feb 2014
The following update includes a translation of the essence of the verdict given by the Israeli High Court of Justice (HCJ) regarding holding Palestinian prisoners in prisons and detention facilities in Israel.
Palestinian political prisoners and administrative detainees from the West Bank and Gaza are being held by the Israeli authorities in incarceration and detention facilities inside Israel, in contradiction to the Fourth Geneva Convention concerning the rights of protected persons in occupied territory. On March 25, 2009, the Israeli NGOs "Yesh Din", "The Association for civil rights in Israel" and "HaMoked" have petitioned the HCJ demanding a reevaluation of this policy.
The petition was filed following a study by Yesh Din from 2007, which revealed that incarceration of Palestinians inside Israel entails a severe infringement of various civil rights, among them the rights to legal representation and due process.
The following text is a translation of the HCJ verdict from 17 March 2010.
Yesh Din, The Association for civil rights in Israel and Hamoked: Center for defense of the individual, petitioned against The commander of the Israeli army forces in the West Bank, the Minister of defense, the minister of homeland security and the Israeli prison services in 2009, regarding the imprisoning of Palestinian prisoners from the West Bank in prison facilities inside Israel.
The petitioners claimed that holding West Bank residents in incarceration facilities inside Israel contradicts the Geneva Convention regarding the protection of citizens in times of war from 1949. The petitioners claimed that holding Palestinian West Bank residents in Israeli prisons contradicts clauses 49 and 76 of the Geneva Convention. They also claim that this incarceration harms the civil rights of these prisoners because of their detachment from their families, especially considering the movement limitations cast upon the West Bank residents in recent years. The petitioners also asked the court to instruct the answerers to stop holding arrest procedures of the West Bank residents in military facilities located in Israel.
In March 28, 2010, the Israeli Supreme Court handed down its verdict on the matter, as follows.
Dorit Beinish, the chair women of the Supreme Court claimed that for many years Palestinian resident of the West Bank are held in incarceration facilities in Israel. This custom started when the military governance was imposed in the area. For a long period of time, these prisoners were held in two facilities: Ktziot and Megiddo prisons. After the partial withdraw of the military forces from some of the occupied territories in the West Bank there was a significant increase in the amount of Palestinian prisoners held in incarceration facilities in Israel.
As of today, there is one incarceration facility, the Ofer compound, located in the West Bank, in which there were at the time of the discussion 691 Palestinian prisoners. The rest of the 6,594 Palestinian prisoners were held in different incarceration facilities in Israel. Out of these 6,594 prisoners, 1,104 were criminal prisoners and 4,168 were "security prisoners"*. These prisoners were held in Ktziot, Shikma, Petach Tiqwa, Jerusalem, Meggido and Kishon facilities, all under the responsibility and maintenance of the Israeli Prison service.
The legal framework under which these prisoners are held is the emergency regulations of 1967. These were prolonged by the court until June 30, 2012**.
The question of the legality of holding West Bank prisoners in Israel was discussed in the Israeli supreme court in 1988 (case 253/88), when the case of specific prisoners held in Ktziot incarceration facility was discussed. The Supreme Court debated the matter of the Geneva Convention and interpreted mainly article 49 of the convention. Yet, the decisive argument to accept the legality of holding Palestinian West Bank residents in facilities inside Israel was based on regulation 6 of the Israeli emergency regulations, which overpowers international law.
The court claimed that in this case, as it was in the case of 1988, the emergency regulations overcome the Geneva Convention. The state constantly claimed to the court that the Geneva Convention was a contractual convention and its implementation derives from the commitment that the state of Israel took upon itself to respect the humanitarian instructions of the convention. The court claims the Israeli state must accept the humanitarian instructions of the convention, but in any other case, the Israeli law overcomes the rules and regulation of international law.
The interpretation of the Geneva Convention for its incidence on the area should be done according to the circumstances and special characteristics that oblige from the need to implement the occupation rules in the circumstances suited to the area. The court accepted that the state should ensure adequate conditions to Palestinian prisoners held in Ofer and in prisons inside Israel according to the standards of international law. The court insisted on the duty to uphold international standards for prisoners, according to the Body of Principles for the Protection of All Persons under any form of detention or imprisonment (1988), according to the Geneva Convention and the international convention regarding civil and political rights from 1966. The court also recommended establishing a monitoring committee for the humanitarian condition of the West Bank prisoners.
The state claimed that Palestinian West Bank prisoners receive visits from their families under the required limitations. According to the court, it is possible that the accessibility of family members to visit their incarcerated relatives necessitates improvement, yet it cannot be discussed under this petition and should be discussed under a separate petition.
Regarding the petitioners claim that holding the incarceration discussions inside Israel contradicts article 66 of the Geneva Convention, the court again ruled that the emergency regulations overcome international law.
The petitioners also claimed that the current arrangement of remand in the military courts inside Israel harms the rights of the Palestinian prisoners to a fair trial since lawyers from the West Bank are prevented from representing them in the procedure. The state counter claimed that this is a general claim that isn't anchored in factual basis. The court accepted the states' claim and ruled that this issue should be discussed when there are specific arguments describing such cases.
In conclusion, the court ruled that the Geneva Convention should be interpreted and applied in accordance with the special conditions of the Israeli occupation of the West Bank, considering the fundamental basis of article 27 in the convention, which states as follows:
"Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity…
However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war."
The court also claimed that the humanitarian condition of the prisoners was actually improved by their incarceration in prisons inside Israel. The court ruled that under the current circumstances, the state must consider the establishment of incarceration facilities in the West Bank, over the course of which the prisoners' conditions might be harmed, as well as the local inhabitants' conditions. Under these circumstances, the court rejected the petition.
* Palestinian political prisoners.
** These regulations are constantly prolonged and are still valid to this day.
See more information in the website of HaMoked.
The original verdict (in Hebrew only) can be find in this link.
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