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In 2008, Adalah and other Palestinian human rights groups brought a petition before Israel’s High Court of Justice (HCJ) arguing that Israel is obliged to allow family visits to prisoners from Gaza and that the imprisonment of Gazan prisoners in Israel is illegal under international law. However, in its decision, the HCJ ruled against the petitioners, finding that the right to family visits in prison is not within the “framework of the basic humanitarian needs of the residents of the Strip, which Israel is obligated to enable”.(1)
Addameer contends that this decision contravenes international law protecting detainees’ rights to family visits and demands that Israel and, in particular, the Israeli Prison Service (IPS), allow family visits and phone communication to Gazan prisoners in accord with its legal obligations. Moreover, Addameer submits that the absolute prohibition on family visits for prisoners from Gaza is designed to demoralize prisoners’ families and devastate the entire Gazan population, making the policy a clear case of collective punishment, a war crime for which the Israeli State and responsible individuals within the Israeli administration should be brought before the International Court of Justice and the International Criminal Court respectively.
Introduction
The right to family visits is an entrenched right in international law, expressly provided for in the Standard Minimum Rules for the Treatment of Prisoners,(2) the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,(3) the European Prison Rules,(4) Fourth Geneva Convention,5 and, in relation to child detainees, the Convention on the Rights of the Child.(6) Article 27 of the Fourth Geneva Convention obliges an Occupying power to protect, inter alia, family rights. Under the International Covenant on Civil and Political Rights (ICCPR)(7), the family is recognized as “the natural and fundamental group unit of society”(8) and should be accorded the widest protection possible.
Israel detains Palestinians from the occupied Palestinian territory (OPT), including the West Bank, East Jerusalem and the Gaza Strip, in prisons and detention centers outside 1967 occupied territory. This practice is illegal under international law,(9) and poses significant challenges to Palestinian prisoners’ ability to receive family visits. For Palestinian prisoners from Gaza, the situation is dire: prior to 2007, prisoners from Gaza incarcerated in Israeli prisons were permitted family visits, even after the withdrawal of Israel’s military presence inside Gaza. However, as a response to the 2006 Palestinian election results, Israel has denied residents of Gaza held in Israeli prisons family visits since 6 June 2007.
Decision of the High Court of Justice
On 9 December 2009, the Supreme Court of Israel, sitting as the HCJ, delivered the decision of H.C. 5399/08, Adalah et al. v. The Defense Minister et al. The court made its decision on the finding that Gaza is no longer occupied by Israel, rendering residents of Gaza “aliens”. The Court found no reason to disturb Israel’s legitimate exercise of its power as a sovereign state to “to prevent aliens – and especially aliens who are part of the population of a hostile entity – from entering its territory”.
On 9 December 2009, the Supreme Court of Israel, sitting as the HCJ, delivered the decision of H.C. 5399/08, Adalah et al. v. The Defense Minister et al. The court made its decision on the finding that Gaza is no longer occupied by Israel, rendering residents of Gaza “aliens”. The Court found no reason to disturb Israel’s legitimate exercise of its power as a sovereign state to “to prevent aliens – and especially aliens who are part of the population of a hostile entity – from entering its territory”.
Israel’s arguments regarding the status of Gaza as unoccupied are based on the withdrawal of the Israeli “military regime” from Gaza in 2005. Israel claims that as it no longer has any soldiers in Gaza, the area is no longer occupied, and Israel is not under a general obligation to consider the human rights of Gaza’s residents except in the context of the war with Hamas.
The Israeli courts have confirmed this position.(10) In the Al-Basyouni case, the HCJ held that since it has “no power to administer civilian life” in the Gaza Strip, Israel has no obligation to “care for the well-being of the residents of the Strip”.(11) Rather, according to the Israeli government and the Court, Israel’s obligations under international law arise solely from its war with Hamas.(12) The Court in the present case found that the right to family visits is not a basic humanitarian right which Israel is obliged to accord residents of Gaza under its limited human rights obligations to “an alien population”.
The Court noted that Israel does allow residents of Gaza into Israel in extraordinary circumstances such as medical emergencies and that such ‘extraordinary entry’ is also possible for the purpose of family visits. However, the likelihood of that right ever being enabled is reduced further by the Court’s statement that family visits always remain at the discretion of prison authorities.
The Court acknowledges that the exclusion policy does cause “indirect” harm to prisoners but does not consider this reason enough to justify changing the policy.
The Court further acknowledges that preventing prisoners from acquiring basic items would cause harm, but held that merely preventing family members bringing goods does not inflict harm since such items could be purchased from the prison canteen with funds transferred electronically from family members to the prisoner.
Addameer’s Response to the HCJ Decision
Although the Court failed to address this issue in their decision, Addameer operates under the legal assumption that the Gaza Strip remains part of the OPT. The United Nations and the International Court of Justice, along with UN agencies and international nongovernmental organizations such as UNRWA and Human Rights Watch, also consider the occupation to be ongoing and that therefore broader international law obligations fall on Israel.(13) In effect, these international bodies accept that “Israel still controls every person, every good, literally every drop of water to enter or leave the Gaza Strip. Its troops may not be there… but it still restricts the ability for the Palestinian authority to exercise control.”(14) Accordingly Israel’s removal of residents of occupied Gaza into prisons inside Israel is illegal under the Fourth Geneva Convention.
Although the Court failed to address this issue in their decision, Addameer operates under the legal assumption that the Gaza Strip remains part of the OPT. The United Nations and the International Court of Justice, along with UN agencies and international nongovernmental organizations such as UNRWA and Human Rights Watch, also consider the occupation to be ongoing and that therefore broader international law obligations fall on Israel.(13) In effect, these international bodies accept that “Israel still controls every person, every good, literally every drop of water to enter or leave the Gaza Strip. Its troops may not be there… but it still restricts the ability for the Palestinian authority to exercise control.”(14) Accordingly Israel’s removal of residents of occupied Gaza into prisons inside Israel is illegal under the Fourth Geneva Convention.
Further, Addameer maintains that Israel is obliged under the international documents listed above to fulfill its obligations to Palestinian prisoners held in Israeli prisons, namely their right to have a family life and to receive family visits. These rights may be subject to reasonable restrictions guided by international law – but not wholesale prohibition – on the grounds of “security” concerns. However, Israel’s policy of leaving open the “possibility” of allowing residents of Gaza into Israel in extraordinary circumstances of humanitarian need is in practice meaningless – even cases of grave medical emergencies or patients requiring life-sustaining care which cannot be provided in Gaza have been deemed not sufficiently “extraordinary” to override the policy of exclusion on political and “security” grounds.(15)
Because Israel considers that it has been in a “state of emergency” since the 1948 Nakba,(16) the “security threat” allegation has been employed widely, including to legitimate the arbitrary detention of any Palestinian person on ‘secret information’, and also to prevent family visits to prisoners (including refusing travel permits to family members resident in the West Bank). The pervasive use of the allegation – especially its application to internationally respected Palestinian human rights activists and the entire Gazan population – indicates that the label is a weapon in Israel’s attempt to disempower Palestinian society behind the veil of fabricated security concerns. Addameer contends that were there any genuine ‘security’ concerns, they could be addressed by returning detainees to the occupied territory in accordance with international law. Addameer further suggests that the incarceration of OPT residents outside the occupied territory, and the superimposition of the “security” discourse onto this practice, is intended to isolate Palestinian detainees from their families and Palestinian civil society.
Moreover, Addameer observes that Israel has consistently denied individual rights under the pretext of state security,(17) despite being a State Signatory to many conventions and other documents which require protection of human rights. Its flagrant violation of the Fourth Geneva Convention requirements regarding detention of residents of occupied territory intensifies the impact of its other violations. In the present case, the illegal transfer of Palestinian people out of occupied territory and the definition of the occupier/occupied relationship as one of State/foreigner creates the ‘legal justification’ to deny Palestinian prisoners incarcerated in Israeli prisons of the basic right to be visited by their family members. Moreover, at the same time that Israel denies Gaza is occupied, it continues to control the lives of the residents of Gaza in its colonial enterprise by, inter alia, controlling Gaza’s borders (as an ‘extension’ of Israel’s borders), the movement of Gazan people, the passage of goods and delivery of services, and arresting and incarcerating residents of Gaza in Israeli civilian prisons.
However, the policy is more than a violation of the human rights of prisoners; it is an attack on the family unit and the entire Gazan society, and meets the legal definition of collective punishment since Gazans as a whole are being punished for alleged activities they did not personally carry out.(18)
The current situation in Gaza is comparable to the bans on family visits imposed on families of the West Bank cities of Nablus and Jenin between 2001 and 2005, which were implemented as a form of punishment for the ‘security problems’ Nablus and Jenin were experiencing at the time. The Israeli authorities stated that family visits would be reinstated if the ‘security troubles’ calmed down. During that time, many prisoners and their families were denied contact for as long as four years.
Personal, social and practical impacts of the decision on Gazan prisoners and their families
At present, 722 Gazans are detained in Israeli prisons. Accordingly, the ban on family visits can be expected to affect hundreds of Gazan families and untold thousands of individuals.
At present, 722 Gazans are detained in Israeli prisons. Accordingly, the ban on family visits can be expected to affect hundreds of Gazan families and untold thousands of individuals.
Gazan prisoners are primarily held in Ashkelon Prison north of Gaza, and Nafha and Ramon Prisons in the Negev desert. Smaller populations of Gazan prisoners are held in Eshel and Ohal Keidar Prisons, both in Beersheba, and others may be held elsewhere. Of these, eight Gazans are currently held in administrative detention as “unlawful combatants”.
Although the Court touched superficially on the issue, it failed to sufficiently address the serious harm to prisoners caused by the prohibition on family visits. Addameer remains deeply concerned about the well-being of Gazan prisoners in this context.
Prisoners who maintain regular family ties while in prison enjoy better physical and mental health and have fewer problems reintegrating into society. Isolation from family and community while in detention can result in long-term mental health problems. Family relationships can be damaged with long-lasting effect. Parents may lose the ability to participate in family life after their release. Children who are incarcerated have their right to education interrupted because they are unable to receive educational material from their family.
The impact of parental imprisonment on the family and especially children is often severe. Economic strain commonly flows from the loss of income of the incarcerated parent; the other parent is left to care for any dependents alone, causing additional emotional and economic strain; and parental absence contributes to problems of adjustment and emotional instability for children that often persist into adulthood and plague the afflicted individual throughout his or her life.(19)
Research on female prisoners in particular indicates that the lack of adequate and sufficient contact with children and family members is a key source of anxiety for women in incarceration. Anxiety can translate into depression, anger and guilt, and lead to the deterioration of the woman’s overall mental state and health condition. Since women are usually the primary caregiver for young children, visits with imprisoned mothers are essential for the child’s emotional development. Children prevented from visiting their mothers express deep feelings of blame and rejection, which has grave repercussions on their self-esteem and self-perception. Additionally, children of imprisoned mothers “may be at graver risk of imprisonment themselves”,(20) especially whenever relations with the parent are broken.
Gazan detainee Fatema Azzeq gave birth to her son Youssef in January 2008 while in detention. Her experience can be described as nothing less than inhumane. Her hands and feet were tied until immediately before giving birth, and again shackled immediately after giving birth. Neither Fatema’s husband nor any other family member was allowed to visit her at any point during her detention, including during labor and in the days after Youssef’s birth. Youssef and his siblings did not meet until October 2009 when Fatema was released.
Qahira Saeed As-Sa’ade, a married mother of four, was arrested in 2002 and subsequently sentenced to three life sentences. At the time of her arrest, her children were aged 9 (Sandy), 8 (Mohammad), 6 (Ra’fat) and 4 (Dena). Shortly after her arrest, her husband, Nasr, was also arrested and imprisoned for five years. Ten months after his release, Nasr was re-arrested and incarcerated for 12 months under an administrative detention order. While their father was in detention, Qahira’s children were sent to an orphanage for 17 months. They then lived with their grandmother for the remainder of Nasr’s detention period.
Since his release, Nasr has been their primary care-giver. Describing the impact of Qahira’s incarceration on their children, Nasr says that: “Losing their mother has affected everything in them. It has affected their entire lives. There is nothing like the love and compassion of a mother. Their mother was everything to them and she was always there for them […] Imagine losing all that at such a young age.”
Many Palestinian prisoners held by Israel are subjected to further isolation through the use of solitary confinement and isolation as means of punishment. The impact is to remove Palestinian prisoners from the social network they develop in detention and deepen the often harmful psychological effects of incarceration.
Moreover, without visits, prisoners are unable to acquire food, clothing and basic goods to supplement the inadequate supplies they are provided by the prison. Prices in the prison canteens are typically much higher than they are in the OPT or Israel,(21) rendering many items too expensive for prisoners. In addition, family members are often unable to transfer money to their incarcerated relative due to their inability to enter Israel, despite the Court’s arguments to the contrary. Adalah contends that it knows of at least one case where the Israel Prison Service insisted that only a prisoner’s family member can transfer money to a prisoner and this can only be done from inside Israel. They argue therefore that this decision does nothing to ensure the right of prisoners to receive money from family members.(22)
Compounding the denial of family visits, the prisoners from Gaza, along with all Palestinian prisoners Israel refers to as “security detainees”, are banned from telephoning family members. These prisoners can request permission from the prison administration to call their family for humanitarian reasons – whenever a family member is critically ill or has died, for example – but anecdotal information collected by Addameer from prisoners is that such requests are frequently denied. The IPS treats the right to telephone contact as a discretionary ‘privilege’, in breach of the international law documents listed above which require that telephone communication be allowed as often as possible.
The sole female Gazan prisoner in isolation, W., was detained on 20 June 2005. Due to an “individual security ban” and then the collective ban, she has been prevented from seeing her family since she was arrested. Despite continuously submitting requests to be able to contact her family via telephone, since her incarceration such permission was granted only once in 2006 and once in 2008, as special gestures from the prison administration due to religious holidays. W. suffers from a severe health condition requiring special ongoing medical treatment. Due to her complete lack of communication with family, W.’s mental health has also been affected, now requiring psychological treatment.
The right to send and receive letters
The right of prisoners to send and receive letters is equally protected in the fundamental international law documents dealing with imprisonment and internment. Official IPS policy permits such communication, but in practice letters are usually received only after lengthy delays, if at all. According to IPS procedure, letters to be sent out by prisoners must not be sealed, and are subject to mandatory ‘security review’. A security officer then decides if the letter is to be mailed or not. Detainees are not informed of the decision, so they are unable to know whether their letter was actually sent. Where letters ‘pass’ the security test, they are either posted to the detainee’s family or passed to their family through International Committee of the Red Cross (ICRC) delegates, according to the detainee’s wishes.
The right of prisoners to send and receive letters is equally protected in the fundamental international law documents dealing with imprisonment and internment. Official IPS policy permits such communication, but in practice letters are usually received only after lengthy delays, if at all. According to IPS procedure, letters to be sent out by prisoners must not be sealed, and are subject to mandatory ‘security review’. A security officer then decides if the letter is to be mailed or not. Detainees are not informed of the decision, so they are unable to know whether their letter was actually sent. Where letters ‘pass’ the security test, they are either posted to the detainee’s family or passed to their family through International Committee of the Red Cross (ICRC) delegates, according to the detainee’s wishes.
Prison regulations further dictate that letters sent to prisoners and detainees are to be opened and ‘screened’ by a security officer who is empowered to decide whether the prisoner is to receive the letter or not. Again, the prison authorities do not inform detainees of the fact that they received a letter if the security officer decides to refuse access.
Prisoners and family alike have told Addameer that their letters never arrive. It appears that the IPS often confiscates letters, and generally treats written communication as a mere discretionary right.
The mother of two Gazan prisoners, Mohammed and Dyia, reports that most of her letters are never received. She suspects that prison authorities may be confiscating the letters. She has raised her concerns with the ICRC but nothing has changed. She now relies on her news and greetings being relayed through the family of a detainee from Ramallah. Mohamed and Dyia have only been permitted to speak with their mother over the phone on two occasions, once when their father died in 2005, and for five minutes after the 2008-2009 Israeli assault on Gaza.
Imad Z., a 36-year-old Gazan resident serving a life sentence in Ramla Prison hospital, suffers from a serious medical condition. Despite the precariousness of his health situation and appeals for help to Physicians for Human Rights—Israel, ICRC, and Addameer, his parents have not visited him since the blanket prohibition on visits came into force. Until the imposition of the ban, Imad had sent six letters to his family in Gaza, the last being delivered surreptitiously by a friend upon his release from prison. Since 2007, even with the aid of lawyers and the ICRC, no further letters have been delivered. On 22 February 2009, Imad suffered a stroke. The family was informed by telephone, and Imad’s mother was able to send him a message through the ICRC. However, only three months later – and only for five minutes – was Imad permitted to speak with his family by telephone. Another five-minute phone call was permitted at the conclusion of the assault on Gaza in January 2009. The only ongoing communication currently taking place is through the Palestine satellite television channel on which Imad can see messages sent from his family to the television station. Imad’s family is extremely concerned for his wellbeing and fear that his medical condition is deteriorating as a result of his isolation and the lack of scrutiny of his medical treatment.
Family contact by video
Recently, the Israeli authorities proposed to introduce video conference calls as a substitute for in-person family visits for Gazan detainees. Israel’s position seems to suggest that it considers the situation of Gazan prisoners to be analogous to that of prisoners in Guantanamo Bay and Bagram Detention Center in Afghanistan where the ICRC has introduced this measure.
Recently, the Israeli authorities proposed to introduce video conference calls as a substitute for in-person family visits for Gazan detainees. Israel’s position seems to suggest that it considers the situation of Gazan prisoners to be analogous to that of prisoners in Guantanamo Bay and Bagram Detention Center in Afghanistan where the ICRC has introduced this measure.
Addameer condemns Israel’s attempt to circumvent its international law obligations through its disingenuous acknowledgement of the sanctity of the family unit. Although video calls protect and maintain a family’s relationship more than mere letters or ordinary phone calls can, Israel nevertheless has greater unmet obligations under both international humanitarian and human rights law and the measure is ultimately deficient.
Any comparison between Gazan prisoners and those in Guantanamo or Afghanistan is dubious: there is a vast practical difference between Gazans visiting relatives who are incarcerated within only tens of kilometers in territory that does not require the crossing of international borders and which imposes no fiscal burden on the Israeli administration,(23) vis-à-vis visits for families who live in different countries thousands of kilometers away from the detainees’ places of detention and require visas in circumstances where the detaining government would incur significant costs in arranging international travel to facilitate in-person visits.
The alleged “security risk” posed by the Guantanamo detainee population as a whole is equally suspect and stands as a politically motivated determination. Given that most remaining Guantanamo inmates are incarcerated without charge or trial or have been tried and cleared of all charges (as in the case of the seven Chinese Uighurs who remain in custody awaiting transfer to a host country),(24) Addameer submits that – were there not the geographical obstacles to family visits – Guantanamo detainees should also be permitted face-to-face family visits.
The video call proposal implies furthermore that there is a logistical difference in facilitating family visits between Gaza and the West Bank. Addameer submits that any differentiation on logistical grounds between Gazan and West Bank residents is unsustainable. In both cases, family visits are logistically simple; the only obstacles are the ones Israel has deliberately erected as strategies of the occupation, in particular long waits and invasive searches at checkpoints and prisons, the bureaucratic process involved in the issuing of permits, and the incarceration of Palestinians outside occupied territory in contravention of the Fourth Geneva Convention. Gazan residents should receive permits and be transported to the relevant prison by the ICRC in the same way as West Bank residents.(25)
Only where true geographical or other logistic obstacles exist can video calls be considered ‘humanitarian gestures’. As shown above, this cannot be considered the case for Palestinian prisoners from Gaza.
The total ban on family visits by Israel violates both international humanitarian and human rights law. In the case of Gaza, security, geography and degree of harm to the protected person population dictate that video contact is grossly inadequate. The format of the video calls does not even constitute ‘personal video contact’ as the proposal is that they be collective. The presence of other people, including IPS staff, completely precludes ‘intimate personal contact’ and privacy.
Moreover, even if video contact did go some way to satisfying Israel’s legal obligations to maintain family links under the Fourth Geneva Convention, because international humanitarian and human rights law apply simultaneously – even in situations of armed conflict – meeting the minimum standards under international humanitarian law does not necessarily absolve a State from more robust obligations under international human rights law, as is the case here. In light of the above, it is clear that Israel’s video contact proposal is a mala fide token gesture to evade its international law obligations to a population it is obliged to protect.
The ban on family visits as collective punishment and prisoners as political tools
Addameer contends that the ban on family visits upheld in the HCJ decision is one aspect of a comprehensive campaign of unlawful measures designed to punish, isolate and disempower the people of Gaza. The punishment inflicted on the people of Gaza collectively – a war crime under the Fourth Geneva Convention(26) – also includes but is not limited to:
Addameer contends that the ban on family visits upheld in the HCJ decision is one aspect of a comprehensive campaign of unlawful measures designed to punish, isolate and disempower the people of Gaza. The punishment inflicted on the people of Gaza collectively – a war crime under the Fourth Geneva Convention(26) – also includes but is not limited to:
- the near-total closure of borders preventing Gazans receiving medical treatment abroad, which Gaza’s health system cannot provide;
- the exclusion of international humanitarian aid and the refusal by Israel to compensate or provide aid for the lasting damage caused by the Israeli assault on Gaza from 27 December 2008 – 18 January 2009, as a result of which tens of thousands of people remain homeless, Gaza’s public infrastructure is completely destroyed, and much of Gaza’s agricultural land is no longer arable;
- the blockade on the passage of goods through Gaza, which has prevented reconstruction and recovery from the Israeli assault on Gaza, created one of the highest unemployment rates in the world and continues to cripple the Gazan economy; and,
- the frequent use of blanket cuts of electricity supply from Israel, on which Gaza is wholly reliant, and without which hospitals and sewage plants cannot function, and denial of access to clean water.
The punishment of prisoners and their families, and the intensification of the effects of incarceration through practices which increase a prisoner’s feelings of isolation, are intended to more efficiently manage prisoners’ advocacy activities the IPS labels ‘problematic’ behavior, and to exert pressure on detainees and their families, including coercing prisoners into collaboration with Israel against Palestinian society.
Insofar as Israel alleges that the blockade of and assault on Gaza are measures to deter militant attacks on Israel, the occupied Gazan society is being collectively punished, a war crime under the Fourth Geneva Convention.(27) The Israeli discourse which labels Gazans as “security threats” merely because of their residency, and the strategies Israel employs to ‘deal with’ this fabricated threat, make the war crime of collective punishment one that Israel openly commits and publicizes. Addameer considers that the suspension of the family visits program forms part of this program of collective punishment.
Taken together with the forcible transfer of Palestinian people from the 1967 occupied territory and their unlawful imprisonment, Israel is also committing a crime against humanity, namely persecution of the Gazan people.(28)
Palestinian prisoners have also long been exploited by Israel as bargaining chips in political negotiations. In fact, hostage-taking in the interests of state security was at one point legally endorsed by the Israeli Supreme Court and has subsequently been legislatively enshrined.(29)
The mass imprisonment of Palestinians can be seen as an indiscriminate attempt by Israel to gain political leverage in any negotiations with the Palestinian leadership in the knowledge that the release of Palestinian political prisoners is amongst the Palestinian society’s primary concerns. As Attorney Baker argued in the Adalah petition, Palestinian prisoners are “transform[ed]… into pawns used by Israel in order to secure political gains that have absolutely no relation to the official reason for their imprisonment”.(30) The true reason for their imprisonment can therefore be described as arbitrary, in violation of Article 9 of the ICCPR. Israel treats Palestinian prisoners without any concern for their basic human rights or, indeed, their humanity. In its decision, the HCJ found it necessary to make only the barest token comments regarding the humanitarian needs of the Gazan population, finding them trumped by the usual rhetoric about “security” concerns, thereby executing, in legal terms, the dehumanization of the Gazan population.
Addameer condemns the decision of the HCJ as legalizing violations of international law by Israel against the population of Gaza, including the war crime of collective punishment and the crime of persecution, and demands that Israel and, in particular, the Israeli Prison Service, allows family visits and phone communication to Gazan prisoners in accord with its human rights obligations. In addition, Gazans held in Israeli detention must be returned to facilities inside the occupied territory, and the illegal collective punishments levied against the people of the Gaza Strip, including the ongoing blockade and exclusion of life-saving international aid, must cease immediately.
1 H.C. 5399/08, Adalah et al. v. The Defense Minister et al.para. 7.
2 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.
3 Adopted by the United Nations General Assembly Resolution 43/173 of 9 December 1988.
4 Adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, Rec(2006)2¸ replacing Rec(87)3E of 12 February 1987.
5 Convention (IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
6 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989; entry into force 2 September 1990, in accordance with article 49.
7 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976, in accordance with Article 49.
8 ICCPR, Article 23(1).
9 Fourth Geneva Convention, Article 76.
10 HCJ 9132/07, Al-Basyouni Ahmed v. Prime Minister
11 Id.
12 “In the circumstances that developed, the State of Israel’s primary obligations vis-à-vis the residents of the Gaza Strip derive from the state of war that prevails between it and the Hamas organization, which controls the Gaza Strip…” Id., para. 12.
13 See: Goldstone Report, Chapter IV, especially para. 276; website of the Office for the Coordination of Humanitarian Affairs office on Occupied Palestinian Territory; Summary of the Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, July 9, 2004 (available at: http://www.icj-cij.org/docket/files/131/1677.pdf); Richard Falk, Statement by Prof. Richard Falk, United Nations Special Rapporteur for Human Rights in the Occupied Territories, United Nations Human Rights Council, December 27, 2008 (available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/F1EC67EF7A498A30C1257…).
14 Gregory Khalil, speaking at University of Virginia School of Law: Panelists Disagree Over Gaza’s Occupation Status, November 17, 2005 (available at: http://www.law.virginia.edu/html/news/2005_fall/gaza.htm)
15 This has been extensively documented by Physicians for Human Rights – Israel.
16 Nakba, in Arabic, means “catastrophe”. Specifically it has come to refer to the ethnic cleansing and land theft perpetrated against the Palestinian population by Zionist forces which led to the formation of the state of Israel. In Zionist history and historiography, this moment is dominantly referred to as Israel’s “war of independence”. See Ilan Pappe, The Ethnic Cleansing of Palestine, Oxford: One World, 2006.
17 Consider, for example, the Incarceration of Unlawful Combatants Law (2002) which defines an “unlawful combatant” as a “person who has participated either directly or indirectly in hostile acts against the State of Israel, or is a member of a force perpetrating hostile acts against the State of Israel,” and who is not entitled to prisoner of war status under international humanitarian law. The law creates two presumptions that shift the burden of proof to the individual who has been labeled an “unlawful combatant”: first, the release of an individual identified as an “unlawful combatant” will harm national security unless proven otherwise; second, the organization to which the detainee belongs carries out hostilities, if the Israeli Minister of Defense has made such a determination unless proven otherwise. For further details see: Addameer Prisoner Support and Human Rights Association, ‘Reaching the ‘No-Peace’ Agreement: The Role of Palestinian Prisoner Releases in Permanent Status Negotiations’, December 2009, p. 21-22 (available at: http://addameer.info/wp-content/images/addameer-report-reaching-the-no-…).
18 Article 33 of the Fourth Geneva Convention requires that “no protected person… be punished for an offence he or she has not personally committed. Collective penalties… are prohibited”.
19 T.A. Fritsch and J.D. Burkhead, “Behavioral Reactions of Children to Parental Absence Due to Imprisonment”, Family Relations, Vol. 30, No. 1 (Jan. 1981), pp. 83-88.
20 Bastick M. and Townhead L., “Women in Prison, A Commentary on the UN Standard Minimum Rules for the Treatment of Prisoners”, Quakers United Nations Office, 2008.
21 Article 87 of the Fourth Geneva Convention stipulates that canteen prices must not be higher than local market prices.
22 Adalah: The Center For Arab and Minority Rights in Israel, ‘Israeli Supreme Court: No Family Visits for Gaza Prisoners in Israeli Prisons’, Adalah News Update, Volume 67, December 2009 (available at: http://www.adalah.org/eng/pressreleases/pr.php?file=09_12_10_9).
23 Before the 2007 prohibition on Gazan family visits, and in relation to family member residents of the West Bank, the ICRC facilitated all transport needs for family members, providing buses from the city closest to the resident’s home direct to the prisons inside Israel.
24 Al Jazeera English, “US court dismisses Uighurs’ appeal”, 2 March 2010 (available at: http://english.aljazeera.net/news/americas/2010/03/20103224742185727.ht…).
25 Nevertheless, Addameer maintains that Israel must abide by international law by incarcerating OPT resident detainees only in the OPT and as close as possible to their residence.
26 Article 33 of the Fourth Geneva Convention requires that “no protected person… be punished for an offence he or she has not personally committed. Collective penalties… are prohibited”.
27 Id.
28 Rome Statute of the International Criminal Court, Article 7(h): A crime against humanity includes “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph [(d) forcible transfer; (e) unlawful imprisonment] or any crime within the jurisdiction of the Court”. Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.
29 Administrative Detention Appeal [A.D.A.] 10/94 Anon. v. Minister of Defence, 53(1) P.D. 97 (Nov. 13, 1997) (Heb.). Although the decision was rendered on 11 November 1997, the Supreme Court did not release it for publication until 11 March 1998. Chief Justice Aharon Barak held that “a detention is legal if it is designed to promote State security, even if the danger to State security does not emanate from the detainees themselves”, and that detention of the Lebanese appellants “for the purpose of release of the captured and missing soldiers is a vital interest of the State”. See: Norman G. Finkelstein, Beyond chutzpah: on the misuse of anti-Semitism and the abuse of history, Univ. of California Press, Berkeley and Los Angeles, 2005, p. 215, citing Human Rights Watch, Human Rights Watch Submission to the Human Rights Committee (New York, 13 July 1998) quoting Barak). A re-examination of state-sponsored hostage-taking in Further Hearing [F.H.] 7048/97 Anon. v. Minister of Defence 54(1) P.D. 72 (20 Apr. 2000) (Heb.) overturned the 1998 position, but subsequently the Knesset introduced the Incarceration of Unlawful Combatants Law (2002) law which essentially reinstated the position of the Supreme Court in Anon. v. Minister of Defence (1997).
30 Adalah News Update, supra note 23.
2 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.
3 Adopted by the United Nations General Assembly Resolution 43/173 of 9 December 1988.
4 Adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, Rec(2006)2¸ replacing Rec(87)3E of 12 February 1987.
5 Convention (IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
6 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989; entry into force 2 September 1990, in accordance with article 49.
7 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976, in accordance with Article 49.
8 ICCPR, Article 23(1).
9 Fourth Geneva Convention, Article 76.
10 HCJ 9132/07, Al-Basyouni Ahmed v. Prime Minister
11 Id.
12 “In the circumstances that developed, the State of Israel’s primary obligations vis-à-vis the residents of the Gaza Strip derive from the state of war that prevails between it and the Hamas organization, which controls the Gaza Strip…” Id., para. 12.
13 See: Goldstone Report, Chapter IV, especially para. 276; website of the Office for the Coordination of Humanitarian Affairs office on Occupied Palestinian Territory; Summary of the Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, July 9, 2004 (available at: http://www.icj-cij.org/docket/files/131/1677.pdf); Richard Falk, Statement by Prof. Richard Falk, United Nations Special Rapporteur for Human Rights in the Occupied Territories, United Nations Human Rights Council, December 27, 2008 (available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/F1EC67EF7A498A30C1257…).
14 Gregory Khalil, speaking at University of Virginia School of Law: Panelists Disagree Over Gaza’s Occupation Status, November 17, 2005 (available at: http://www.law.virginia.edu/html/news/2005_fall/gaza.htm)
15 This has been extensively documented by Physicians for Human Rights – Israel.
16 Nakba, in Arabic, means “catastrophe”. Specifically it has come to refer to the ethnic cleansing and land theft perpetrated against the Palestinian population by Zionist forces which led to the formation of the state of Israel. In Zionist history and historiography, this moment is dominantly referred to as Israel’s “war of independence”. See Ilan Pappe, The Ethnic Cleansing of Palestine, Oxford: One World, 2006.
17 Consider, for example, the Incarceration of Unlawful Combatants Law (2002) which defines an “unlawful combatant” as a “person who has participated either directly or indirectly in hostile acts against the State of Israel, or is a member of a force perpetrating hostile acts against the State of Israel,” and who is not entitled to prisoner of war status under international humanitarian law. The law creates two presumptions that shift the burden of proof to the individual who has been labeled an “unlawful combatant”: first, the release of an individual identified as an “unlawful combatant” will harm national security unless proven otherwise; second, the organization to which the detainee belongs carries out hostilities, if the Israeli Minister of Defense has made such a determination unless proven otherwise. For further details see: Addameer Prisoner Support and Human Rights Association, ‘Reaching the ‘No-Peace’ Agreement: The Role of Palestinian Prisoner Releases in Permanent Status Negotiations’, December 2009, p. 21-22 (available at: http://addameer.info/wp-content/images/addameer-report-reaching-the-no-…).
18 Article 33 of the Fourth Geneva Convention requires that “no protected person… be punished for an offence he or she has not personally committed. Collective penalties… are prohibited”.
19 T.A. Fritsch and J.D. Burkhead, “Behavioral Reactions of Children to Parental Absence Due to Imprisonment”, Family Relations, Vol. 30, No. 1 (Jan. 1981), pp. 83-88.
20 Bastick M. and Townhead L., “Women in Prison, A Commentary on the UN Standard Minimum Rules for the Treatment of Prisoners”, Quakers United Nations Office, 2008.
21 Article 87 of the Fourth Geneva Convention stipulates that canteen prices must not be higher than local market prices.
22 Adalah: The Center For Arab and Minority Rights in Israel, ‘Israeli Supreme Court: No Family Visits for Gaza Prisoners in Israeli Prisons’, Adalah News Update, Volume 67, December 2009 (available at: http://www.adalah.org/eng/pressreleases/pr.php?file=09_12_10_9).
23 Before the 2007 prohibition on Gazan family visits, and in relation to family member residents of the West Bank, the ICRC facilitated all transport needs for family members, providing buses from the city closest to the resident’s home direct to the prisons inside Israel.
24 Al Jazeera English, “US court dismisses Uighurs’ appeal”, 2 March 2010 (available at: http://english.aljazeera.net/news/americas/2010/03/20103224742185727.ht…).
25 Nevertheless, Addameer maintains that Israel must abide by international law by incarcerating OPT resident detainees only in the OPT and as close as possible to their residence.
26 Article 33 of the Fourth Geneva Convention requires that “no protected person… be punished for an offence he or she has not personally committed. Collective penalties… are prohibited”.
27 Id.
28 Rome Statute of the International Criminal Court, Article 7(h): A crime against humanity includes “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph [(d) forcible transfer; (e) unlawful imprisonment] or any crime within the jurisdiction of the Court”. Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.
29 Administrative Detention Appeal [A.D.A.] 10/94 Anon. v. Minister of Defence, 53(1) P.D. 97 (Nov. 13, 1997) (Heb.). Although the decision was rendered on 11 November 1997, the Supreme Court did not release it for publication until 11 March 1998. Chief Justice Aharon Barak held that “a detention is legal if it is designed to promote State security, even if the danger to State security does not emanate from the detainees themselves”, and that detention of the Lebanese appellants “for the purpose of release of the captured and missing soldiers is a vital interest of the State”. See: Norman G. Finkelstein, Beyond chutzpah: on the misuse of anti-Semitism and the abuse of history, Univ. of California Press, Berkeley and Los Angeles, 2005, p. 215, citing Human Rights Watch, Human Rights Watch Submission to the Human Rights Committee (New York, 13 July 1998) quoting Barak). A re-examination of state-sponsored hostage-taking in Further Hearing [F.H.] 7048/97 Anon. v. Minister of Defence 54(1) P.D. 72 (20 Apr. 2000) (Heb.) overturned the 1998 position, but subsequently the Knesset introduced the Incarceration of Unlawful Combatants Law (2002) law which essentially reinstated the position of the Supreme Court in Anon. v. Minister of Defence (1997).
30 Adalah News Update, supra note 23.