Date: 21 September 2005
Time: 12:30 GMT
More Than 650 Palestinian Prisoners from the Gaza Strip Are Still Detained in Israeli Jails
Although Israel has completed the implementation of the unilateral “Disengagement Plan” and declared the end of its military government in the Gaza Strip, it has continued to detain at least 650 Palestinians from the Gaza Strip in its jails in violation of international legal standards. Israel has also taken a series of measures to legally justify the continued detention of these Palestinians who are treated on racial bases.
On 12 September 2005, as the last Israeli soldier left the Gaza Strip, the Israeli military commander in the Gaza Strip issued a statement ending the military government in the Gaza Strip declaring that “today, the military government in the Gaza Strip has come to an end.”
Accordingly and pursuant to the international law, Israeli Occupation Forces (IOF) must have released at least 650 Palestinian prisoners from the Gaza Strip detained in Israeli jails and military detention facilities. Article 77 of the Fourth Geneva Convention of 1949 prescribes that “protected persons who have been accused of offences or convicted by the courts in occupied territory shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory.” Additionally, the Convention obligates the occupying power to detain “protected persons accused of offenses… in the occupied country” (article 76), and to set in courts to try them in the occupied country (article 66). However, IOF have systematically violated the Convention in this regard.
However, it is clear Israel’s decision to end the military government in the Gaza Strip is merely an attempt to cover its continued occupation of the territory. This is evident in the issue of Palestinian prisoners from the Gaza Strip, as IOF have taken a series of measures to justify continued detention of Palestinian prisoners, sentenced, waiting for trials or held under administrative detention without any charge.
First: With the end of the military government in the Gaza Strip, IOF have abolished the military court and the military prosecution office in Erez area in the northern Gaza Strip and transferred all cases related to Palestinian prisoners from the Gaza Strip to Beir al-Saba Court inside Israel and the civil Attorney General. For instance, PCHR has followed up with utmost concern the case of 16-year-old Mohammed Ahmed Abu Houli, from Deir al-Balah, who has been detained by IOF since 29 July 2005. The case is being considered by the central court of minors in Beir al-Saba. According to the bill of indictment presented by the Israeli prosecutor, the case is based on violation of the Israeli Penal Law of 1997 rather than on military orders concerning the Gaza Strip issued by IOF. The case is also based on the Emergency Regulations issued in 1945 during the British Mandate on Palestine; that is, before the establishment of the State of Israel in 1948. These regulations violate minimum human rights standards.
Second: In another attempt to overcome international legal standards in order to justify continued detention of Palestinian prisoners, Israel invented the concept of “illegitimate combatant” to describe Palestinian prisoners who are in fact civilian person protected under the Fourth Geneva Convention, and consequently justify their detention in accordance with a special law called “Illegitimate Combatants” issued in 2002. According to this law, the IOF Chief of Staff has the authority to issue an arrest warrant against a person if there is a basis to assume that such person is “a legitimate combatant.” In this context, PCHR is gravely concerned over the cases of Riad Sa’di ‘Ayad, 32, and Hassan Mas’oud ‘Ayad, 33, both from Gaza, who have been held under administrative detention. The IOF Chief of Staff issued decisions ordering their continued detention considering them “illegitimate combatants.” Riad ‘Ayad was arrested by IOF on 1 January 2002, and on 17 March 2002, he was placed under a renewable 6-moth administrative detention. He has been detained without any charge. With regard to Hassan ‘Ayad, he was arrested by IOF on 24 January 2003, and he was placed under a renewable 6-month administrative detention without any charge on 24 February 2003. On 12 September 2005, the same day of the declaration of the end of Israeli military government in the Gaza Strip, the IOF Chief of Staff ordered to continue the detention of Riad and Hassan in accordance with the aforementioned law, instead of releasing them like 3 other prisoners from the Gaza Strip who had been held in administrative detention.
Third: The Israeli government is currently seeking to pass two draft laws to ensure continued detention of Palestinian prisoners from the Gaza Strip and authorize interrogators to interrogate these prisoners. According to the first draft law, “Law of Serving Imprisonments Sentences Issued by the Military Court in the Gaza Strip,” all Palestinian prisoners from the Gaza Strip shall not be released before the expiry of their imprisonment sentences. This draft law also proposes that imprisonment sentences issued by the military court in the Gaza Strip shall be implemented the same as imprisonment sentences issued by civil courts in Israel. Early release of those who are imprisoned in Israel shall be subject to “Law of Conditioned Release of 2001,” with amendments that shall authorize military officers rather than directors of prisons to order the release as prescribed by the law.
The other draft law, “Law Regulating Criminal Procedures (Authorities of Implementation and Regulation Related to Security Offences by Non-Citizens),” aims to regulate authorities granted to interrogators to interrogate non-citizens. According to the memorandum of this draft law, with the end the Israeli military government in the Gaza Strip, interrogators have no longer any authority to interrogate citizens from the Gaza Strip. Additionally, authorities granted to interrogators under military orders are wider than those prescribed under this draft law. Thus, this draft law includes granting wider authorities to interrogators in order to interrogate citizens from the Gaza Strip, especially with regard to the extension of the interrogation period before presenting a suspect before a judge, increasing the period of extended detention authorized for judges and the possibility of extending the period of detention by a court without the presence of a detainee. In addition to attempting to legally justify the interrogation of detainees from the Gaza, these propositions constitute a flagrant violation of human rights and reflect racial attitudes towards Palestinian citizens, who will be subject to the Israeli Penal Law, but with wider authorities being granted to interrogators.
In light of the persistent efforts by Israel (the occupying power) to maintain the detention of Palestinian prisoners from the Gaza Strip in Israeli jails and detention facilities:
1) PCHR asserts that continued detention of Palestinians from the Gaza Strip by the State of Israel constitutes a challenge to the international law and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949.
2) PCHR rejects all Israeli efforts to create pretexts to overcome the international law, avoid legal obligation and keep Palestinian prisoners detained inside Israel on one hand, and allow wider authorities that violate human rights standards and have racial bases to interrogate prisoners on the other hand.
3) PCHR asserts that continued detention of Palestinians from the Gaza Strip inside Israel further proves continued Israeli military occupation of the Gaza Strip in spite of the implementation of the unilateral “Disengagement Plan,” which is clearly a form of redeployment in the Gaza Strip rather than withdrawal.
4) PCHR calls upon the international community, particularly the High Contracting Parties to the Fourth Geneva Convention to effectively intervene to ensure the release of all Palestinian prisoners as a requisite for what Israel calls “an end of military government in the Gaza Strip.”
1. The Israeli military spokesman’s response to a request from a PCHR lawyer to obtain the military order ending the Israeli military government in the Gaza Strip.
2. The Israeli military order ending military government of the Gaza Strip.
13 September 2005
Mr. Tameem Younis
Palestinian Centre for Human Rights
Re: Your Letter to the IDF Spokesman
Your request to obtain a copy of the declaration ending the military government was received in our offices. This declaration was signed by the GOC Southern Command on 12 September 2005 following the IDF’s departure from these territories and the transfer of control over these territories to the Palestinian authorities and its bodies in accordance with the decision of the Israeli government.
Enclosed herewith a copy of the signed declaration.
Head of the File of International Organization
Israel Defense Forces (IDF)
Declaration Ending Military Government
IDF’s departure form the Gaza Strip territory.
1. In accordance with the decision of the Israeli government on 11 September 2005, today, 12 September 2005, IOF moved out of the Gaza Strip and handed over control over these territories to the Palestinian Autonomous Council.
End of the military government
2. By the end of this day, the military government in the Gaza Strip shall end.
Date: 12 September 2005
IDF Commander in the Gaza Strip