(Legal Submission)
Palestinian Center for Human Rights
(PCHR)
Message to the Free World from the Committee of Palestinian Prisoners’ Families and Prisoners’ Committee of Islamic and National Factions
22 May 2017
Introduction
Around 1,700 Palestinian prisoners in the Israeli jails have been on an open hunger strike since 17 April 2017. Dr. Marwan al-Barghouthi, the hunger strike leader, Member of the Palestinian Legislative Council (PLC) and prisoner in the Israeli jails, announced the strike aims at “Confronting violations of prisoners’ rights guaranteed by the international law.” He added in a message addressing the parliamentarians all over the world a week after the strike started, “We resorted to this hunger strike after months of exhausting all efforts and attempts to claim our legitimate demands relevant to mass arbitrary arrest, torture, punitive measures, deliberate medical negligence, family visitation and communication, and the right to education all practiced against prisoners. These are the basic rights we should enjoy.”
Many human rights reports and lawyers emphasize that around 6,300 Palestinian prisoners are subject to inhumane and degrading conditions in the Israeli jails outside of the occupied territory.[1] Imprisonment of persons in prisons outside the Palestinian territory occupied since 1967 is itself a violation of the Fourth Geneva Convention, where Article 76 stipulates that, “Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.” These facts raise questions about Israel’s fulfillment of its international obligations and accordance of hunger strikers’ demands with these obligations.
The West Bank and Gaza Strip are considered a territory occupied since 1967 according to the Security Council’s resolutions and ascertainment of the International Court of Justice (ICJ). Thus, this fact imposes legal obligations upon Israel, as an Occupying Power, not only according to the international humanitarian law but also to the international human rights law. This also brought up solid legal facts which the UN has always worked on and the ICJ has adopted in its advisory opinion “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.”[2] ICJ Advisory Opinion was based on the ICJ legal analysis in addition to the Security Council’s Resolutions No. 779 adopted in 1992 and No. 1994 adopted in 1994, which both emphasize the applicability of the Fourth Geneva Convention to the Palestinian territory occupied since 1967.
On the other hand, the UN Human Rights Committee stressed, within its remarks on Israel’s report filed to the Committee, that Israel fails to fulfill its obligations according to International Covenant on Civil and Political Rights (ICCPR) when it does not include the Gaza Strip and West Bank in its reports.[3] This emphasizes that the Occupying Power is obliged to apply these conventions in the oPt[4]. Thus, Israel has an international obligation to apply the two laws, and giving preponderance to one over another in a way that achieves greater protection for Palestinian civilians.
According to these legal facts, the Israeli authorities, as a Signatory State to the Fourth Geneva Convention, should apply all obligations outlined in this Convention towards Palestinians in the occupied territory, particularly obligations relative to rights of those Palestinians arrested for security reasons according to the international standards relating to the conditions of this detention. Moreover, Israel has another obligation according to the international humanitarian law, particularly ICCPR, that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[5]
This submission presents a legal analysis of the demands by the Palestinian prisoners, who have been on a hunger strike for 36 days to pressurize Israel to implement these demands. Moreover, the submission aims at showing the conformity of these demands with Israel’s international obligations towards prisoners and whether they are complementary and negotiable or minimum rights that are inalienable according to the international standards. This submission is divided into 5 parts. The first part displays the Palestinian hunger striking prisoners’ demands; the second reviews the rights of prisoners and the Detaining Power’s obligations according to the international law; the third presents a legal analysis to reflect the legal characterization of prisoners’ demands and their reality; the fourth addresses the importance of the international advocacy of the prisoners’ demands transferred via their families titled as; their defeat is a shame on humanity; and finally the fifth part drafts recommendations to the international community, UN, and international mechanisms.
After reviewing the Palestinian prisoners’ demands and rights and conducting the legal analysis in accordance with Israel’s binding international standards, this legal submission concluded that Palestinian prisoners’ demands are less than the minimum rights guaranteed by the international humanitarian and human rights laws. Thus, their demands are non-negotiable rights for prisoners and are part of Israel’s legal obligations.
Therefore, the Palestinian prisoners are now struggling for even less than the minimum rights guaranteed by the international standards to maintain their dignity, using their empty stomachs and body cells as the last weapon in order to obtain their basic rights, on which they negotiated with the Israeli Prison Service (IPS) for months but in vain. Thus, the prisoners decided to resort to their most difficult and painful choice, which is the hunger strike. Our prisoners hereby sets a good example for the world, showing what the human rights system has been disseminating, including that human dignity is worth fighting for. This puts the world and human rights movement through a difficult and real test. Therefore, the UN and civil society human rights movement should either prove the effectiveness of having such a system or emphasize that it is only a formal framework that was created only to give a beautiful and non-realistic image of a world controlled and led by unjust and brutal powers. Today, it is obligatory and important to take immediate and serious steps because every minute of the hunger strikers’ lives counts.
Part 2: Prisoners’ Rights under Inhumane Conditions. 9
Part (3): Legal Analysis of the Palestinian Prisoners’ Demands: 13
Part 4: Their Defeat is A Shame on Humanity. 18
The Palestinian hunger-striking prisoners drafted their demands months ago before starting their strike and attempted to negotiate with the IPS. After being ascertain that IPS is determined to subject them to inhumane and degrading conditions, the prisoners were forced to resort to the most difficult choice, which is to go on hunger strike until all their demands are achieved. The strike leader stressed that after declaring their strike, they could only go one of two ways; either to obtain their rights or starve. Their demands were divided into 6 main parts started by regular contact with their families; adequate medical care; humane treatment and ending all the inhumane punitive measures, including torture and solitary confinement; right to education; releasing all sick prisoners, particularly those with disabilities or incurable diseases, and ending the administrative detention policy.
The Palestinian prisoners, practically those from the Gaza Strip, suffer from denying their right to contact with their families and right to receiving family visits and parcels of food, clothes, books and etc. Family visits are usually canceled or prisoners are denied receiving their families or some of them for security reasons. Moreover, prisoners are denied visits from family members between 16 and 35 years old. The visit is only limited to firs-degree relatives. On the other hand, prisoners’ families undergo arbitrary measures during their very difficult trip to meet their relatives once in each month sometimes for only half an hour. The suffering exacerbates for prisoners from the Gaza Strip and their families as family visits were banned from 2007 to 2012 to be allowed again but once every 60 days; i.e. 6 times a year, while the family visits for the prisoners from the West Bank are allowed 15 times during the year.[6]
Therefore, the prisoners demand a public phone to be established in all prisons and sections to call their families. They also call for bringing back the second visit that was suspended by the International Committee of Red Crescent (ICRC).[7] Therefore, the prisoners emphasize that visits should be regular every two weeks and not be obstructed by any authority. Moreover, any first or second degree relative should not be denied visiting the prisoner accompanied with children and grandchildren under 16 years old in each visit. They also demand that the visit duration should range from 45 minutes to an hour and a half. They also asked for taking photos with their families every 3 months and enabling them to receive food and clothes parcels. Moreover, they emphasize that facilities should be equipped to ensure prisoners’ families’ comfort while waiting them in front of the prison gate as they suffer a lot. Prisoners also stress that female prisoners should be granted the right to face-to-face visit without barriers.
The Palestinian prisoners experience deliberate medical negligence practiced by the IPS, which sometimes compromise the prisoners sometimes in order to receive the medical treatment. Human rights organizations have documented a number of deaths among prisoners that likely resulted from deliberate medical negligence by the IPS.[8] Therefore, the Palestinian prisoners call for putting an end to the medical negligence policy adopted by the Israeli authorities and highlight the importance of having periodic medical check-ups and allowing them to undergo operations without delay conducted by competent medical crews from outside the prison. The prisoners further stress that they should not pay for the medication they take. They also demand closing al-Ramleh Prison Hospital because it does not properly offer the medical treatment they need.[9]
The Palestinian prisoners in the Israeli jails are subjected to several forms of torture and arbitrary, cruel and inhumane treatment, the most prominent of which are: 1) the prisoner transport vehicle that is used to transport the prisoners from one jail to another for long hours every few months (as a routine measure). It is a big armored vehicle with one small window. During the transport, the prisoners stay in that vehicle for long hours in a very cold/hot weather, where they are denied access to water and toilets. 2) During the transport also, the prisoners are gathered in a very filthy facility before they are redistributed. In that facility, there are small cells that cannot take over five persons each. However, the Israeli forces detain over 15 prisoners in one cell for a period ranging between one to eight days, during which the prisoners are offered water and food that are not fit for human consumption. The ill prisoners suffer due to this measure the most, because they remain in that facility for one day or more whenever they need medical treatment at al-Ramleh military hospital. 3) The Palestinian prisoners are repeatedly placed in solitary confinement for prolonged periods reaching years sometimes. 4) The prisoners suffer in some prisons due to the extremely cold/hot weather as the Israeli authorities do not offer air conditioners in the prisons. 5) Finally, the Israeli authorities deny the prisoners the right to prepare their food themselves or supervise food preparation, due to which the prisoners have no choice but to eat the meals prepared by the IPS.
The Palestinian prisoners, thus, call for receiving humane treatment while being transported by the prisoner transport vehicle, and stopping mainly the naked search policy and placing the ill prisoners in the abovementioned facility while returning from the hospital. In addition, they demand the Prison Service to renovate the facility and to offer them food and water that are fit to the human consumption. The prisoners underscore the importance of ending the solitary confinement policy, giving them access to kitchens to fully supervise their food and installing air conditioners in the prisons, especially in Megiddo and Jalbou’ prisons because they are too hot in the summer and too cold in the winter. Nonetheless, the hunger strikers call for meeting the female prisoners’ demands concerning their transportation, as the female prisoners’ privacy is violated and they are degradingly treated.
The IPS denies the Palestinian prisoners the right to education by arbitrarily preventing a number of prisoners from sitting for the secondary school (Tawjihi) exam or joining the Open University of Israel. The Israeli Prime Minister Benjamin Netanyahu issued a decision in June 2011 for the Prison Service to ban the privileges granted to the Palestinian prisoners, of which was pursuing their education at universities.[10] The Israeli High Court upheld that decision by rejecting the petitions filed to cancel that decision. The IPS arbitrarily and selectively denies books, newspapers and satellite channels. Therefore, they demand allowing them to take the Tawjihi exams in an official and approved way and to give them access to the Open University of Israel. They also highlight the right to get books, newspapers and certain items during family visitations and to watch TV freely.
The Israeli authorities insist on detaining dozens of prisoners suffering from incurable diseases or having disabilities without offering them the proper healthcare or demands they need. Therefore, one of the prisoners’ demands is to release these prisoners.
Many local and international reports showed that the Israeli authorities have applied administrative detention in a systematic and arbitrary manner. Administrative detention is placing a person under detention for long periods with no charge brought against him or without appearing before a court. The Israeli authorities place hundreds of Palestinian prisoners under administrative detention, including women and children. According to Addameer’s periodic statistics, there are 500 administrative detainees in the Israeli jails in April 2017.[11] Some of these prisoners were detained for years as the military court renewed their imprisonment every six months without any charges against them or allowing them to have proper defense. Thus, the Palestinian prisoners call for putting an end to the administrative detention policy.
The international human rights and humanitarian laws organized the rights of persons deprived of their liberty in the times of war and peace. They showed the limits, obligations and powers of the Detaining Power whether it was the state of the detained person or an occupying state. The Fourth Geneva Convention regulates the rights of the prisoners, who are civilians detained by the Occupying Power to maintain its safety. Article (10-1) of the ICCPR stipulates, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person“. Moreover, the 1977 Standard Minimum Rules for the Treatment of Prisoners was more detailed in regulating all aspects of detention and the prisoners’ rights. The following is an explanation of the basic rights ensured by these conventions and obligations of states concerned.
Section IV of the Fourth Geneva Convention addresses Regulations for the treatment of internees between articles 79 and 135. Nonetheless, the Standard Minimum Rules for the Treatment of Prisoners that was approved by the Economic and Social Council in 1977 provided the minimum level of explanation relevant to, “be treated with humanity and with respect for the inherent dignity of the human person” stipulated in article 10 of the ICCPR. This part covers some rights and obligations provided in the Fourth Geneva Convention and the Standard Minimum Rules for the Treatment of Prisoners, mainly those relevant to the demands of the Palestinian prisoners on hunger strike.
Article 81 of the Fourth Geneva Convention stresses, “Parties to the conflict who intern protected persons shall be bound to provide free of charge for their maintenance, and to grant them also the medical attention required by their state of health. No deduction from the allowances, salaries or credits due to the internees shall be made for the repayment of these costs.” Furthermore, article 85 stated:
“The Detaining Power is bound to take all necessary and possible measures to ensure that protected persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigours of the climate and the effects of the war. In no case shall permanent places of internment be situated in unhealthy areas or in districts, the climate of which is injurious to the internees….”
The Standard Minimum Rules for the Treatment of Prisoners included almost the same obligations. They highlighted meeting all requirements of health and climatic conditions, including “cubic content of air, minimum floor space, lighting, heating and ventilation”[12] and stressed that “All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.”[13]
The prisoners have the right to prepare their food themselves according to article 89 of the Fourth Geneva Convention, “Internees shall also be given the means by which they can prepare for themselves any additional food in their possession….” Moreover, article 90 of the same Convention provides, “Internees shall be given all facilities to provide themselves with the necessary clothing, footwear and change of underwear….” Article 91 confirms the right to healthcare as follows:
“Every place of internment shall have an adequate infirmary, under the direction of a qualified doctor, where internees may have the attention they require, as well as an appropriate diet. Isolation wards shall be set aside for cases of contagious or mental diseases. Maternity cases and internees suffering from serious diseases, or whose condition requires special treatment, a surgical operation or hospital care, must be admitted to any institution where adequate treatment can be given and shall receive care not inferior to that provided for the general population.”
Proper healthcare is a basic right of prisoners according to article 92 of the Fourth Geneva Convention:
“Medical inspections of internees shall be made at least once a month. Their purpose shall be, in particular, to supervise the general state of health, nutrition and cleanliness of internees, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases. Such inspections shall include, in particular, the checking of weight of each internee and, at least once a year, radioscopic examination.”
The Standard Minimum Rules for the Treatment of Prisoners underscore the prisoners’ right to specialist treatment, as:
“Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.”[14]
The Fourth Geneva Convention obliges the Detaining Power to encourage intellectual, educational and recreational activities. Article 94 provides:
“The Detaining Power shall encourage intellectual, educational and recreational pursuits, sports and games amongst internees, whilst leaving them free to take part in them or not. It shall take all practicable measures to ensure the exercice thereof, in particular by providing suitable premises.
All possible facilities shall be granted to internees to continue their studies or to take up new subjects. The education of children and young people shall be ensured; they shall be allowed to attend schools either within the place of internment or outside.
Internees shall be given opportunities for physical exercise, sports and outdoor games. For this purpose, sufficient open spaces shall be set aside in all places of internment. Special playgrounds shall be reserved for children and young people.”
The Standard Minimum Rules for the Treatment of Prisoners confirmed this in Rules (77) and (78) obliging the Detaining Power to take all measures necessary to ensure that prisoners enjoy these rights. Furthermore, those Rules highlighted the significance that “Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications.”[15] The same Rules obliged the Detaining Power to “Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.”[16]
Article 108 of the abovementioned Convention stipulates that prisoners shall be allowed to receive individual parcels or collective shipments containing in particular foodstuffs and clothing. Moreover, Article 116 confirms that the prisoners are allowed to receive visitors and sometimes to go out and visit their families in certain cases:
“Every internee shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible. As far as is possible, internees shall be permitted to visit their homes in urgent cases, particularly in cases of death or serious illness of relatives.”
The Standard Minimum Rules for the Treatment of Prisoners stressed that the IPS should seek minimizing any gaps between prison life and life in liberty affirming that, “The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it.”[17] These standards also assert that “Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.”[18] Furthermore, these standards state, “Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.”[19]
Articles from 119 to 125 of the Fourth Geneva Convention organize the disciplinary punishments of the Detaining Power against the prisoners as the disciplinary penalties shall be humane or not exceeding maximum thirty consecutive days. The prisoners shall not be deprived of the right to healthcare, doing sports, reading, writing and sending or receiving letters. Article 119 states that:
“In no case shall disciplinary penalties be inhuman, brutal or dangerous for the health of internees. Account shall be taken of the internee’s age, sex and state of health. The duration of any single punishment shall in no case exceed a maximum of thirty consecutive days..”.
Article 125 in particular emphasizes the rights prisoners shall enjoy even if they faced disciplinary punished. It states that:
“Internees awarded disciplinary punishment shall be allowed to exercise and to stay in the open air at least two hours daily. They shall be allowed, if they so request, to be present at the daily medical inspections. They shall receive the attention which their state of health requires and, if necessary, shall be removed to the infirmary of the place of internment or to a hospital. They shall have permission to read and write, likewise to send and receive letters..”
For the importance of this matter, the abovementioned Convention pays special attention to how prisoners should be transferred as history reflects cases of cruelty and inhumanity experienced by prisoners during their transfer, which not only made them lose their dignity, but their own lives also. Therefore, the transfer of prisoners shall be “conducted humanely”, as Article 127 of the Fourth Geneva Convention provides that:
“The transfer of internees shall always be effected humanely. As a general rule, it shall be carried out by rail or other means of transport, and under conditions at least equal to those obtaining for the forces of the Detaining Power in their changes of station. If, as an exceptional measure, such removals have to be effected on foot, they may not take place unless the internees are in a fit state of health, and may not in any case expose them to excessive fatigue. The Detaining Power shall supply internees during transfer with drinking water and food sufficient in quantity, quality and variety to maintain them in good health, and also with the necessary clothing, adequate shelter and the necessary medical attention. The Detaining Power shall take all suitable precautions to ensure their safety during transfer, and shall establish before their departure a complete list of all internees transferred.”
This was confirmed by the Standard Minimum Rules for the Treatment of Prisoners in Rule (45-2), “The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited.”
The abovementioned Convention also considered connected detention to hostilities and stressed the importance of releasing prisoners once the hostilities end. The parties to the conflict shall hold agreements to guarantee that. Article 133 stipulates that: “Internment shall cease as soon as possible after the close of hostilities,” while Article 132 of the Convention states that:
“Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. The Parties to the conflict shall, moreover, endeavor during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time.”
International organizations, including the ICRC, has consistently categorized Palestinians detained by the Israeli authorities as protected prisoners according to the Fourth Geneva Convention, particularly section (4) of the Convention. This submission adopts this characterization though it is controversial in light of the demands of many Palestinian human rights organizations and political powers to consider the Palestinian prisoners as prisoners of war[20]. As explained earlier, the Convention grants several rights to prisoners and provide obligations on the Detaining Power in order to provide the minimum level of humanity and dignity to prisoners. The obligations on the Detaining Powers represent the minimum circumstances that shall be provided in the detention facilities. Thus, Israel has an international obligation to apply the international human rights and humanitarian laws, and give preponderance to one over another in a way that achieves greater protection for Palestinian civilians in the oPt. This part provides a legal analysis of the demands of the Palestinian prisoners on a hunger strike in order to recognize their demands and see if they fall within the minimum rights or they are additional and can be compromised.
Article 10 of the ICCPR set a general obligation on Israel as a State Party to the Covenant to treat “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” It should be noted that the abovementioned article avoided specifying or explaining the meaning like detailed in the Fourth Geneva Convention in section (4) or the Standard Minimum Rules for the Treatment of Prisoners. This trend promotes the concept that treating prisoners with dignity and humanity is a developing issue based on the development of civilizations. Thus, the civilized countries are racing to provide the best detention conditions as the prevailing doctrine is that detention is not for the sake of revenge, but to protect the society and to offer the prisoner the opportunity to rehabilitation. This is also applicable to Israel, as it is an exceptional measure allowed by the Geneva Convention to meet the occupying power’s military requirements to protect itself. Therefore, it is not an absolute right, but it depends on the situation. Thus, as a State Party to the Geneva Conventions and the ICCPR, Israel is obliged to treat the prisoners with humanity and dignity.
It is noted that both the Fourth Geneva Convention and the Standard Minimum Rules for the Treatment of Prisoners explained in detail what is meant by humane treatment, which preserve the human dignity of persons deprived of their liberty in the times of war and peace. More than 68 years have passed since the Fourth Geneva Convention was drafted and more than 40 years have passed since the General Assembly adopted the Standard Minimum Rules for the Treatment of Prisoners, therefore, we should note that the standards adopted herein are outdated and should be updated in light of the revolutionary progress to understand the philosophy of human rights. Moreover, these standards do not constitute the minimum rights of prisoners because they were set for criminal prisoners. Thus, these standards are less than the minimum rights to be granted by Israel to the Palestinian prisoners. Below is an analysis of the six basic demands of the Palestinian prisoners on hunger strike.
According to Article 116 of the Fourth Geneva Convention and Articles (37, 36, 71, 60) of the Standard Minimum Rules for the Treatment of Prisoners that were mentioned earlier, the Israeli authorities shall keep the prisoners in constant connection with the world, including receiving visits or even visiting their families in certain cases. The prisoners also shall be permitted to send letters, call their families and communicate with the diplomatic and consular representatives of the State to which they belong. Therefore, the prisoners demands in this regard are less than the minimum rights approved in the international minimum standards. Hence, the Israeli current practices, which triggered the prisoners’ strike, violate Israel’s obligations set for by the international humanitarian and human rights laws.
According to Articles (81, 90, 91) of the Fourth Geneva Convention and Article 22 the Standard Minimum Rules for the Treatment of Prisoners, the prisoners have the right to periodic check-ups and free medical treatment by qualified medical staff in addition to the prisoners right to go to civil hospitals and consult doctors from outside if their health conditions deteriorated. Therefore, the demands of the Palestinian prisoners shown before are less than the minimum rights acknowledged by the international standards in cases of war and peace. The failure to provide these minimum rights is considered a flagrant violation of Israel’s obligations on the international level according to the international human rights and humanitarian laws. Moreover, some Israeli practices, which demonstrate a willful medical negligence, sometimes amount to willful killing or torture that is considered one of the most serious crimes on the international level. Certain cases in reality showed that many sick prisoners died due to deliberate medical negligence practiced by the Prison Service. Some practices relevant to deliberate medical negligence amount to torture, especially when it comes to blackmailing the prisoners in exchange for information they have or to make them collaborate with the IPS.
According to Article 7 of the 1998 Rome Statute of the International Criminal Court (ICC), torture is considered a war crime that amount to a crime against humanity if it was systematically committed or within a policy. Thus, Israel is likely to commit a crime against humanity towards the prisoners or at least a war crime in case Israel insists not to change its policy regarding failure to offer medical treatment, especially in al-Ramlah Prison Hospital, and even blackmailing the prisoners to give information in exchange for receiving medical treatment as mentioned in Article 8 of the same Statute.
According to Articles (76, 85, 89, 127) and Articles (119 – 125) of the Fourth Geneva Convention and Articles (14, 10, 45) of the Standard Minimum Rules for the Treatment of Prisoners, the Israeli authorities should fulfill their obligations in providing proper detention facilities and wards to protect the prisoners from the harsh weather by offering heating and ventilation requirements. Moreover, the abovementioned articles impose obligations on the Israeli authorities not to take any measures that would subject the prisoners to an unnecessary suffering or inhumane and degrading circumstances, even if they were disciplinary punishments in response to violating the IPS orders. Furthermore, these Articles shed light on the importance of transferring the prisoners from one place to another in a way respecting their dignity and humanity. The Israeli authorities should also transfer the Palestinian prisoners in conditions similar to their forces’. In addition, during long transfers, the Israeli authorities shall supply the prisoners with drinking water and food sufficient. Nonetheless, the places of detention should be adequate and clean and the prisoners should be offered food and water therein. According to the abovementioned Articles, the international standards ensured that the prisoners have the right to proper nutrition and supervise making their own meals themselves. They also stressed that the punishment should not affect the prisoners’ humanity or dignity and in no case should exceed 30 consecutive days.
As previously stated, the prisoners demanded enhancing their transfer conditions and ending the solitary conferment policy practiced by the Israeli authorities against them as a systematic punishment for long periods. They also demanded making their meals, having air conditioners in Jalbou’ and Megiddo prisons. They further demanded to be humanely treated during their transfers in the prisoner transfer vehicle and to have the facility renovated. These demands are less than the minimum rights included in the international humanitarian and human rights laws. However, the Israeli authorities’ practices in this regard violate their international obligations. These practices amount to torture crimes according to the Convention against Torture that is binding to Israel as a State Party as well as the common Article 3 of the Geneva Conventions, which is binding for all parties. According to the Fourth Geneva Convention and ICC Rome Statute, some of the Israeli practices are considered war crimes and amount to crimes against humanity as stipulated in Article (7) of Rome Statute. However, the Israeli authorities practice these crimes systematically, not willing to abolish them despite the prompt demands made by international organizations and the prisoners themselves for years. The latest of those demands was this strike that has been ongoing for the 36th day without any response from the Israeli authorities.
Under Article 94 of the Fourth Geneva Convention and Articles 77 and 78 of the Standard Minimum Rules for the Treatment of Prisoners, the Israeli authorities have obligations to encourage those deprived of their liberty in order to practice their right to education and recreation, including sports activities. Therefore, depriving prisoners of education with its entire means, such as receiving books and listening to radio and watching television, is considered as a violation of the Israeli authorities’ obligations under the international law and international human rights law. The prisoners’ demands of being able to set for the general secondary exams (Tawjihi), studying at universities such as Israel’s Open University, having access to books, newspapers and satellite channels are considered as less than the minimum rights stipulated by international standards, particularly the above-mentioned articles, because the IPS is obliged not only to allow, but to encourage the prisoners to do so.
According to Article 132 of the Fourth Geneva Convention, the Detaining Power should release certain classes of internees as soon as the reasons which necessitated his internment no longer exist, “in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time.” Therefore, the demands of prisoners on hunger strike to release the prisoners with disabilities or incurable diseases are less than the minimum rights stipulated in the Convention. Moreover, the Israeli authorities’ stubbornness to detain sick prisoners, female and children prisoners, and hundred other prisoners for over 20 years or 30 years is considered as denial of its international obligations. It should be noted that this happened in spite of signing a peace agreement in 1993 (Oslo Accords.)
The Israeli authorities in the West Bank and Gaza Strip use the administrative detention policy against Palestinian civilians as a punitive and political measure. Article 78 of the Fourth Geneva Convention gives the Occupying Power the authority to carry out administrative detentions but under strict conditions as the Article stipulates that:
“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power”.
In light of the above-mentioned Article, It is clear that administrative detention is an exceptional authority used for “compelled security reasons” and that the detention should be periodically reviewed, confirming its exceptional circumstances. We can verify the lawfulness of the administrative detentions carried out by the Israeli authorities through reading the abovementioned article in conjunction with Article 9 of the ICCPR, which provides that:
“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly.”
It is clear from the aforementioned text that the accused person should be promptly informed of the charge as that is a human right guaranteed by the Convention. Moreover, the arbitrary arrest without evidence against the arrested person is a violation of his rights.
As stated above, the International mechanisms’ trend confirms that the occupying power is obliged to apply both the international humanitarian law and international human rights law in the opt, giving preponderance to one over another in a way that achieves greater protection for Palestinian civilians. We can infer that Israel cannot invoke Article 78 to arrest Palestinian civilians, especially as it misuses this text in a way that violates its content and object. This is confirmed by the fact that thousands are subjected to administrative detention by the Israeli authorities, including women and children.
In light of the above, the Palestinian prisoners’ demand to cancel the policy of administrative detention is a real understanding of Article 78 as well as a deep understanding of their rights and Israel’s obligations and limits under the international human rights and humanitarian laws. This position and analysis was confirmed by Amnesty International in more than one position and statement, the last of which was on 13 April 2017, demanding the Israeli authorities to end the policy of administrative detention.[21]
Palestinian prisoners struggle for obtain less than the minimum rights guaranteed by international standards, using their empty stomachs as the last weapon to fight with their body cells in order to obtain their basic rights, which they negotiated with the IPS for months and years. Thus, the prisoners decided to resort to their most difficult and painful choice, which is the hunger strike, putting the world and human rights movement through a difficult and real test. Therefore, the UN and civil society human rights movement should prove the effectiveness of having a human rights system or emphasizes that it was only created to give a beautiful and non-realistic image of a world controlled and led by unjust and brutal powers.
The Palestinian prisoners drafted their demands months before starting their strike and attempted to negotiate with the IPS. After being ascertain that IPS is determined to subject them to inhume and degrading conditions, the prisoners were forced to resort to the irreversible choice, putting themselves before two options either to achieve their rights and dignity or to die for this. All of this was clearly declared by the leader of the strike, PLC Member Marawan Barghouthi.
This legal submission proved that the Palestinian prisoners’ demands are less than the minimum rights guaranteed Israel’s international binding standards. Moreover, this submission stressed that the current international standards are inadequate and not compatible with the civilized revolution that the human rights movement has got through in the last 50 years. Furthermore, if the prisoners have the right to determine their demands, the world should first admit that these demands are less than the minimum rights they deserve and less than the minimum international standards promoted by the human rights movement worldwide.
The suspicious silence of the UN mechanisms and its Secretary-General towards the Israeli practices against the Palestinian prisoners; defeatist positions of the western governments, which always boast about their achievements in the field of human rights; and ashamed positions of international non-governmental organizations turn the international human rights system into a system of classism that only defend the rights and freedoms of certain classes or peoples.
The solidarity shown by the free people in the eastern and western world and at the highest levels in South Africa to Europe did not meet with official positions amounting to the justness of the Palestinian cause and sacrifice by the Palestinian prisoners on hunger strike. Those defeatist positions threaten and undermine the credibility and idea of the human rights system.
We, the Committee for Palestinian Prisoners’ Families and Prisoners’ Committee of Islamic and National Factions, are aware of the reality of the official global deals and the official regimes foster injustice. We were surprised that after 36 days of strike, the unjust silence so far envelopes the international human rights movement and UN. We honestly ask you: why did you spend all those millions on educating and raising peoples’ awareness all over the world about human rights if you do not have enough courage to stand up in a landmark moment that brings together humanity and human rights perspective at a time? We also ask you, are human rights truly universal? , and was the international system established to defend human rights in everywhere? We want to tell you that our sons’ defeat in achieving their legitimate demands is a disgrace to humanity. However, we are sure that they will not be defeated, and will achieve their rights.
In the end, defending human rights anywhere is defending them everywhere. In addition, the global human rights movement must should identify its position and answer itself: Is it a real movement that follows its principles or it is just a beautiful face covering an ugly truth? There is no time for answers, every minute passes endangers the life of a Palestinian prisoner, who bets on the conscience and humanity of the world, so move now otherwise and do not dishonor yourselves.
We are agonized that the Palestinian prisoners are still on hunger strike in the Israeli jails. We warn that the prisoners are punished twice unjustly, the first when they were detained for long periods of time as a result of their resistance to the Israeli occupation, and the second when they were exposed to various kinds of inhumane and degrading treatment and torture. As a result, we call upon all the free people in the world to support our prisoners who defend their dignity with their empty stomachs. All we have now is hoping that all concerned parties bear in mind this humane and human rights cause. Therefore, we
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[1] Addameer Association for Prisoner Support and Human Rights provides information and reports of universal credibility on the harsh and inhumane conditions which the prisoners in the Israeli jails are subject to. For further information, you can visit Addammer’s website: http://www.addameer.org
[2] International Court of Justice, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, I.C.J, P. 136
[3] Ibid.
[4] Human Rights Committee, “Consideration of Reports Submitted by States parties under article 40 of the Covenant,” CCPR/C/ISR/CO/3, 2010
[5] ICCPR, Article 10
[6] Addameer, “Prisoners’ Families and Visits to Prison,” 15 January 2014 http://www.addameer.org/ar/publications/%D8%B9%D8%A7%D8%A6%D9%84%D8%A7%D8%AA-%D8%A7%D9%84%D8%A3%D8%B3%D8%B1%D9%89-%D9%88%D8%A7%D9%84%D9%85%D8%B9%D8%AA%D9%82%D9%84%D9%8A%D9%86-%D9%88%D8%B2%D9%8A%D8%A7%D8%B1%D8%A7%D8%AA-%D8%A7%D9%84%D8%B3%D8%AC%D9%88%D9%86
[7] In May 2016, ICRC issued a decision to reduce the number of prisoners’ visits into only one visit a month instead of two visits as applicable before. This negatively affected prisoners and their families, which is why bringing back the second visit was one of the prisoners’ demands.
[8] PCHR’s 2016 annual Report: http://pchrgaza.org/ar/?p=13298
[9] The Palestinian prisoners confirm they are maltreated in that Hospital, where the medical crew is incompetent and delay offering medical treatment and check-ups for months sometimes, which jeopardizes the prisoners’ lives and results in deterioration of their health conditions. Therefore, they demanded closing this Hospital.
[10] PCHR, ” PCHR Condemns Collective Penalties against Palestinian Prisoners in Israeli Jails”, Press Release 06 October 2011: http://pchrgaza.org/?p=2060
[11] Prisoners Support and Human Rights Association (Addameer), Statistics, April 2017
http://www.addameer.org/statistics
[12] The Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. Rule (10).
[13] Ibid, Rule (14).
[14] Ibid, Rule (22).
[15] Ibid, Rule (39).
[16] Ibid, Rule (40).
[17] Ibid, Articles (60,61)
[18] Ibid, Article 37
[19] Ibid, Article 36
[20] Many Palestinian powers highlight, especially after Palestine has acceded to the four Geneva Conventions, the significance of considering the Palestinian prisoners in the Israeli jails as prisoners of war so as to demand their release when a peace agreement to be signed.
[21] Amnesty International, ” Israel Should end its ‘unlawful and cruel’ policies towards Palestinian prisoners”, Press release, 13 April 2017
Trial Version
