For information only - not an official document

UNIS/INF/404
8 March 2011

Applicability of International Law to Palestinians in Occupied Territory Reaffirmed in International Meeting in Vienna

As Discourse Shifts to Legal Aspects of Arrests and Detentions, Israel
Urged to Uphold International Human Rights, Humanitarian Law, Geneva Conventions

(Reissued from UN Information Officer)

VIENNA, 8 March (UN Information Service) - The central role of the Palestinian political prisoners in the enduring Israeli-Palestinian conflict dominated discussion in today's United Nations International Meeting on the Question of Palestine, as expert panellists shifted the discourse to the legal aspects of the arrests and detentions.

From Jerusalem, Tamar Pelleg-Sryck, Advocate in the Legal Department of HaMoked - Center for the Defence of the Individual, said that administrative detention was among the numerous measures used by the Israeli occupier to keep in check the Palestinian population of the Occupied Territory. It was a convenient tool, owing to the flexibility and ease with which it was invoked: it simply required the signature of a military commander citing "security reasons" on the request of the "General Security Service" and was supported by secret materials.

Such an order, she told the gathering of representatives of Governments and parliaments, intergovernmental organizations, lawyers, civil society, and United Nations agencies during the two-day Conference, could be issued for six months and indefinitely renewed, allowing for long-term imprisonment without charge or trial. To finalize the order, all that was needed was a short "judicial review" by a military judge authorized to confirm, shorten or cancel it.

Generally speaking, she said, the detainee learned very little, if anything about the reason for his detention. He could learn that he was a security danger, in most cases because of his "terrorist supportive" activities, and in some cases, the "terrorist" label was mentioned. In very few cases, he was alleged to have intended or planned to perform or have been involved in a "terrorist" or "military" activity. He did not know the facts of his case and, thus, was unable to defend himself. The administrative detainee was the victim of secret proceedings, and the public's right to know and all the democratic rights attendant to that right were trampled upon.

Israel's official version for the use of administrative detention was that it was "derived from security constraints and carried out for preemptive purposes in the framework of the ongoing war against terrorism", said the speaker. The real aim, she declared, was to expand and reinforce Israeli rule in the Occupied Palestinian Territory, in violation of international legal standards.

Picking up that thread, Sahar Francis, the Director of the Addameer Prisoner Support and Human Rights Association, also based in Jerusalem, similarly described administrative detention as a tool commonly used by repressive regimes to circumvent the legal process and to hinder access by political dissidents to protection.

Owing to the lack of due process and the risk of abuse in detaining a person without charge or trial, strict restrictions had been placed on administrative detention under international law. While international humanitarian law allowed the occupying Power to use administrative detention, she explained, it was only under explicit and exceptional circumstances. Article 78 of the Fourth Geneva Convention gave the occupying Power the authority to take "safety measures" concerning protected persons, or inhabitants of the occupied territories, including internment for "imperative reasons of security" and not as a means of punishment. The Israeli authorities in most cases, however, had used administrative detention indiscriminately and as a means of punishment.

Indeed, she said, Palestinians had been subjected to administrative detention since the beginning of the Israeli occupation in 1967 and before then, under the British Mandate. According to testimonies given to Addameer, detainees had been held under administrative detention orders from periods ranging from six months to six years. The frequency of the use of administrative detention had fluctuated throughout Israel's occupation and had risen steadily since the outbreak of the second Intifada in September 2000. It had been used as a means of collective punishment of Palestinians who opposed the occupation.

Holding that the practice of administrative detention in Israel and the Occupied Palestinian Territory contravened fundamental human rights and was used in a highly arbitrary manner without even basic safeguards, Addameer demanded that all administrative detainees held on account of their political views or activities carried out in resistance to the occupation be released promptly and unconditionally. Addameer further demanded that the occupying Power adhere to international law and that restrictions on the use of administrative detention be imposed. It insisted that the judicial review of administrative detention orders must meet the minimum international standards for due process. The authorities must provide detainees with prompt and detailed information as to the reason for their detention, and with a meaningful opportunity to defend themselves.

Speaking about the applicability of international law to questions of arrests and detentions Said Benarbia, Legal Advisor, In-charge of Middle East and North Africa Programme, International Commission of Jurists, Geneva, noted that there were some differences between international human rights law and international humanitarian law. But concurrently, both were applicable to the Gaza Strip, West Bank and East Jerusalem. The Israeli authorities, however, rejected the applicability of both sets of laws to the situation of the Occupied Palestinian Territory.

With regard to the situation in the Gaza Strip, the Israeli authorities argued that since the disengagement of 2005, Israel could no longer be considered an occupying Power. But everyone knew that a territory was considered occupied when it was actually placed under the authority of a hostile army, and everyone knew the Palestinian Territory, its airspace, water, borders and daily life was under the control of such an army. Similarly, the Israeli authorities rejected the de jure application of the Geneva Conventions and as concerned the Occupied Palestinian Territory said it could not be considered a High Contracting Party to the Geneva Conventions.

On the other hand, international human rights law authorities argued that protection granted in situations of conflict must be found in international human rights law and international humanitarian law, and that Israel's position contravened international law and the position of the former Yugoslavia Tribunal, which stated that respect for human dignity was the raison d'etre for those laws. The main concern here was not only that the Israeli authorities presented such arguments, but that the Israeli Supreme Court regarded specific issues of torture and administrative detention in a way that tended to dilute or undermine the protection provided for Palestinian civilians under international law.

Shawqi Al Issa, Director, Ensan Center for Democracy and Human Rights, said that satisfying comments had been made by many speakers during the Meeting indicating a preoccupation with the living conditions of the prisoners and support for their cause. As for the legal aspect, however, available options were a sensitive issue, and thus, the legal scope of the conflict was often neglected.

He said that Israel had a long-standing position of refusal to apply Security Council and General Assembly resolutions, as well as the opinions of the International Court of Justice. Despite a unanimous stance that the Fourth Geneva Convention should be applied in the Occupied Palestinian Territory, Israel had refused to implement the text. In fact, it had used all possible pretexts to refrain from its implementations because the Convention contained articles banning it from doing what it was doing - namely, torturing Palestinians, detaining them, and so forth.

Insufficient attention had been accorded to the application of international law, he said. Rather, the attention had been focused on diplomatic activity and negotiations. But recently, the Palestinian Authority had become more aware of the significance of resorting to international law. Despite that, the United States and other States insisted that international law should not be applied in this context, or only selectively. That was made clear with the recent veto in the Security Council on the subject of settlements, which were explicitly outlawed in the Geneva Convention. He was not saying that all prisoners should be released, but that there were questions about what laws were in effect to preserve detainees' rights. What was clear was that the violations stemmed from Israel's refusal to implement the Fourth Geneva Convention in the Occupied Territory.

He added a note about the situation of prisoners in Jerusalem, whom he said were treated "differently from the rest", although Security Council resolutions were "very clear" in that regard indicating that East Jerusalem was part of Occupied Territory Palestinian and that laws applying to the remainder of the Territory also applied to Jerusalem. As for the International Court of Justice, it had rendered two advisory opinions related to the dispute, yet those had been set aside, owing to a view that they did not fall under the direct competence of the court. Clearly, that court had already been "infected with this double standard syndrome". A dedicated tribunal should be set up to broach the matter of the Palestinian prisoners and the applicability of international law to their plight, and work should be undertaken to ensure implementation of the extremely significant recommendations of the Goldstone Report.

Unable to travel from Ramallah for "security reasons", two speakers addressed the meeting via Skype. The first, Shawan Jabarin, General-Director, Al-Haq, said the practice of detentions precluded family visits and infringed on the detainee's right to maintain contact with his or her family or defence counsel. Detainees had a right to human dignity and to the practical considerations surrounding their detention. Palestinian detainees often were held in Israeli prisons, located outside the Occupied Palestinian Territory. Lack of knowledge about the reasons for the arrest and detention, the prevention of visits, lack of a fair trial and other violations were commonplace and amounted to war crimes under the International Criminal Court and a grave breach of the Fourth Geneva Convention.

He said that the transfer of prisoners could also constitute the forcible transfer of civilians. Like previous speakers, he lamented the Israeli practice of administrative detentions, in which charges were often based on evidence that could not be accessed by defence counsel. Palestinians often were not informed of the alleged crimes for which they were detained, and their incarceration could be extended indefinitely. The Israeli High Court of Justice was a "rubber stamp to legitimize the illegitimate".

Nasser Alryyes, Advocate and Legal Researcher, Al-Haq, Ramallah, referenced recent Security Council actions, including the veto by the United States in February of a resolution condemning Israeli settlements, and the unanimous adoption last week of a pro-sanctions resolution concerning Libya and the referral of that situation to the Prosecutor of the International Criminal Court. Those events, he said, only served to "double our disappointment" that the Council continued to turn a blind eye to the plight of the Palestinians, who wished to be treated on equal footing with the peoples of the rest of the world.

Turning to the situation of Palestinian detainees, he said the Israeli occupying State was dealing with Palestinian detainees as criminals that had violated security and the rule of law, rather than recognizing their legal status as freedom fighters. From the outset, the Israeli occupying State had denied the Palestinians the right to a fair trial and imposed on the detainees' psychological and physical torture. The conditions of detainment were deplorable; medical care was denied, as was the right to education and family contact. Palestinians were even obliged to cover the expenses of their detention. Many of those practices could qualify as "gross violations and war crimes" based on article 147 of the Fourth Geneva Convention and article 85 of the First Geneva Protocol.

Thus, he emphasized, the States parties to the Fourth Geneva Convention had a responsibility to confront such Israeli practices, and the United Nations should exercise its Charter-based legal responsibility to pressure the Israeli side to fulfil its obligations vis-à-vis the detainees. States parties could resort to article 146 in the case of Israeli failure to do so within a specific timeframe. The States parties should also give serious though to boycott measures to increase pressure on the Israeli side to comply with international law.

For its part, the international community should oblige Israel to transfer back all detainees from its territory to the Occupied Territory and take a clear-cut decision to exert pressure for the release of the sick, of women and of detainees held for long periods, he said. It should also take clear and candid decisions to stress the legitimate right of the Palestinian people to resist the occupation, as well as stress their right to self-determination.

He said the plight of Palestinian prisoners should assume an international dimension. An international fact-finding committee should be composed to investigate the situation of Palestinian detainees. Finally, it was necessary for the international community to intervene in resolving the question of the detainees and prisoners by supporting a move by the Palestinians to obtain a legal opinion concerning the legal status and rights of the prisoners and the obligations of the occupying Power in that regard.

In the discussion that followed, Iraq's representative reviewed recent statistics gleaned from various human rights organizations concerning numbers of Palestinians in Israeli prisons, totalling an estimated 6,200 persons, including 30 women and more than 300 children. More than 100 had spent more than 20 years in prison, and 150 overall suffered chronic disease. All of them had been detained without trail and were stigmatized as "fighters against Israel". Their detentions and denial of trial and due process were violations.

In January 2009, he recalled, the High Court of Justice of Israel had upheld the decision with regard to refusing to allow people in Gaza from visiting prisons in Israeli territory, which affected more than 700 prisoners from Gaza. Furthermore, juveniles were tried in Israeli military tribunals, while legal experts and human rights defenders said that court was not fit for trying children. Israel had the bodies of many Palestinians who had died in Israeli prisons; their families had been refused the right to bury their dead. Iraq was sorrowful at those Israeli practices, which oppressed and denigrated Palestinian civilians and violated human rights and international humanitarian law.

Egypt's representative added her voice to the views expressed by many of the speakers, but wished the meeting had been held in Cairo, as planned, as the experts in the region might have been more in tune with current events.

Morocco's representative said, that for his country, the issue of Palestinian prisoners and their release, was a matter of international responsibility, the international community must adopt critical recommendations with regard to impunity, support for improved conditions in Israeli jails, as well as a thorough review of the more than 7,000 such prisoners in more than 20 prisons enduring inhumane conditions in flagrant violations of the Fourth Geneva Convention. He called for a political decision by the international community on the issue, in light of the flagrant violation of the Third and Fourth Geneva Conventions. Morocco had spared no effort in engaging in diplomatic activity to ensure that dialogue prevailed and that a political decision be taken to settle the long-standing conflict leading to a two-State solution.

Nicaragua's representative firmly condemned and underlined the country's rejection of the attitude of the Israeli State concerning the situation of Palestinian prisoners in the Occupied Territory. The refusal to redress the inhuman conditions and abandon torture contravened international human rights and humanitarian law, as well as the Universal Declaration of Human Rights. The Fourth Geneva Convention forbids Israel to arrest and take a person outside the Palestinian Territory. Nicaragua supported the creation of a Palestinian State to avoid such human rights violations.

A representative of the Organisation of the Islamic Conference (OIC) said the tragedy was being prolonged mainly because of the application of double standards and the absence of justice. The world was very involved in the fate of a single Israeli prisoner arrested when attempting to perpetrate an attack against Palestinians, when in fact there were thousands of Palestinian prisoners languishing in Israeli jails. Preventive sanctions should be applied in order to suppress those crimes from ever again being committed.

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