Israel’s unlawful policies and practices in Jerusalem have had a devastating impact on the daily living conditions of all Palestinian Jerusalemites. Immediately following the end of the 1967 war and Israel’s illegal annexation of East Jerusalem, the Israeli government proceeded to register Palestinians living there, providing them with the status of “permanent residents” rather than granting them full legal citizenship, as part of its unofficial “collective transfer” or “more land and less Arabs” policy[2]. The rationale behind this policy was to slowly erase the Arab population of Jerusalem and replace the land with Jewish Israeli citizens. Furthermore, Israel’s ideological and material motives were reaffirmed in 1980 when the Israeli Knesset passed the Basic Law declaring Jerusalem as the “whole and united […] capital of Israel”.

 

Denied both Israeli citizenship and a Palestinian identity card, the legal and political rights of Jerusalemites fell under the full discretion of the Israeli authorities, creating a unique disadvantage for Jerusalemite political prisoners. As a result, Palestinian prisoners from East Jerusalem have been isolated, and left out of nearly all negotiated prisoner releases since the beginning of the “Oslo Peace Process” with a disappointing lack of opposition from Palestinian negotiators. This situation continues to exacerbate existing feelings of social and political exclusion among Jerusalemite prisoners, who are already the targets of Israeli efforts to revoke residency rights, particularly among Jerusalemites who are members of the Palestinian Legislative Council[3].

 

Since the beginning of 2008, the IPS has transferred a large majority of Jerusalemite prisoners to Gilboa Prison in the north-east of the 1948 Territories in an attempt to fragment any unity of the greater Palestinian prisoner movement and segregate the Palestinian demographic, a strategy that was also advanced during the Oslo years.

 

Most of the Palestinian prisoners from East Jerusalem who remain in Israeli prisons today were arrested during the Second, or Al Aqsa Intifada. However there are also 45 detainees from East Jerusalem who were arrested before the PLO signed the Oslo Agreement in 1993. Over the years, Israeli authorities have imposed harsh judicial sentences on Jerusalemite prisoners, an issue that will be addressed further in section 4 of this paper.

 

 

On 13 September 1993, representatives of the PLO and the State of Israel signed the Declaration of Principles on Interim Self-Government Arrangements (known as the “Oslo I” Agreement), which was intended to commence a peace process and form a framework for future relations between Israel and the Palestinians. According to the Oslo I Agreement, the Government of the State of Israel and the PLO team agreed in the first stage of the Oslo negotiations in 1993 to:

 

 

The call to release Palestinian political prisoners was a key demand of the PLO during the years of the Oslo “Peace Process” (1993-2000), a demand that increased in resonance with the Israeli withdrawal from Area A in the West Bank which began in late 1995, in accordance with the Oslo Accords[5]. However, as they evacuated, Israeli authorities failed to release or “hand over” the Palestinian prisoners from the “liberated territory” in its custody to the area’s authorities, in clear violation of Article 77 of the Fourth Geneva Convention (1949).[6] Instead, all Palestinian prisoners and detainees imprisoned by Israel were transferred to detention facilities inside 1948 territory, further violating Articles 49 and 76 of the Fourth Geneva Convention, which prohibit forcible transfers of protected persons out of occupied territory and require any imprisonment of protected persons to take place inside occupied territory.

 

Palestinian prisoners from East Jerusalem, as well as Palestinian prisoners from the 1948 territory, were entirely excluded from negotiated prisoner releases during the Oslo process as they were viewed by Israeli authorities as prisoners under the authority of the State of Israel, rather than political prisoners of the Israeli-Palestinian conflict.  Moreover, the issue of East Jerusalem was considered too controversial to be addressed during Oslo negotiations, and this necessarily implied that the release of prisoners from Jerusalem would not be negotiated.[7] As Abd An-Nasser Farawna, a researcher on Palestinian prisoners’ rights, asserts:

 

 

In October 1993, in a famous letter entitled “Where is our place in the Accords?” political prisoners held in Jneid prison in Nablus requested from the Palestinian leaders that their legal rights be addressed under the Oslo process[9]. The failure in the Oslo Accords to include their demands and uphold relevant international legal provisions on political prisoners, including the call to release all political prisoners in Israeli custody, left many feeling that the voice of Palestinian political prisoners was left entirely out of the negotiations.

 

Speaking on behalf of the Palestinian leadership, Palestinian minister Nabeel Sha’th recognized this failing and accordingly refused to sign the 1994 Gaza-Jericho Agreement until a deal was reached that would set a timetable for the release of all Palestinian political prisoners detained before 13 September 1993, the cutoff date for arrests that determined which prisoners would be eligible for inclusion in negotiated releases. The Gaza-Jericho Agreement did stipulate that Israel would release 5,000 Palestinian political prisoners within five weeks of the signing, and although Israel failed to meet this deadline due to imposing extra conditions on their release, by July 1994, 4,450 prisoners had been released[10]. Over 7,000 Palestinian prisoners then remained in Israeli prison.

 

The future of these remaining prisoners appeared to rank extremely low on the Palestinian negotiators’ agenda in the Oslo II Agreement, signed on 24 September 1995. The details of the “Release of Palestinian Prisoners and Detainees,” were addressed very swiftly in one page only, with any further reference relegated to the very last annex to the agreement (Annex VII). By comparison, as many as four pages were devoted to detailing the special passage of Palestinian VIP’s[11], divided into three different categories, including amongst others, “holders of the most senior positions within the Council and officers of the Palestinian Police of the rank of Major-General”, “director-generals of departments in the Council”, and “heads of units in departments in the Council, officials of the Council of equivalent rank to such persons and officers of the Palestinian Police of the rank of Commander”[12].

 

Palestinian prisoners from East Jerusalem, including those who were imprisoned by Israel during the Second Intifada (2000-2005), continue at present to be excluded from ongoing peace negotiations between Israel and the Palestinian Authority (PA). As with prisoners from the West Bank, Israel refuses to recognize Jerusalemite detainees as political prisoners, and classifies them as criminal or security prisoners under Israeli authority; and the Palestinian leadership has yet to adopt a more principled negotiation policy with respect to the release of Jerusalemite prisoners, specifically by refusing to accept Israel’s paradigm of territorial distinction. In the past, before the signing of the Oslo Accords, Palestinian political groups had been successful in rejecting this distinction and achieving the release of Jerusalemite prisoners. For example, on 14 March 1979 and again on 20 May 1985, the Popular Front for the Liberation of Palestine—General Command (PLFP-GC) secured an exchange of Palestinian prisoners in return for the release of captured Israeli soldiers in what were known as the Galilee Exchanges. In their negotiations, the PFLP-GC refused to distinguish between Palestinian prisoners on the basis of their residency, and was able to secure the release of Palestinian prisoners from East Jerusalem along with residents of other areas in the oPt and those within the 1948 borders of Israel. However, at present the PA continues to undermine the notion of Palestinian prisoners as a single population, which not only precludes the release of Jerusalemite prisoners but further demoralizes and divides Palestinian society by demonstrating the PA’s acceptance of Israel’s territorial paradigm and its efforts to divide the oPt and weaken its national identity.

 

 

Some researchers have described the period of Palestinian history between 1994 and 2004 as the “most dangerous and dark” days in the history of the prisoner’s movement[13] as the Oslo negotiations had the effect of impeding and dividing the political mobility of the Palestinian factions and eroding their commitment to nationalist aspirations. Creating such division and disillusion within Palestinian society was clearly one Israeli objective in its approach to the Oslo process.

 

As interviewees have recounted to Yaseen Abu Khdeir:

 

 

Throughout the Oslo process and afterwards, the release of political prisoners was not sufficiently understood as an integral step towards a just and durable peace negotiation, failing to learn from previous experiences in South Africa and Northern Ireland where this was an important and central demand[15].

 

 

 

As part of its efforts to deny East Jerusalem the status of occupied territory in accordance with international law, in theory, Israel subjects Palestinian residents of the city to Israeli civilian law. East Jerusalemites are therefore obliged to pay municipal taxes, even though they do not receive the same services as Jewish residents of the city, and the Ministry of Interior can revoke their residency should they move abroad or to the West Bank. In addition to this, the Israeli authorities invoke both Israeli civilian law and military orders with Jerusalemite prisoners on a purely discretionary basis.

 

Moreover, rather than recognizing the status of these prisoners and detainees as “protected persons” under international humanitarian law, Israel registers Jerusalemites as security[16] or criminal offenders.

 

If a Jerusalemite is charged with an offense which was committed in Jerusalem or territories inside the Green Line, he / she will be tried before the Israeli civilian courts, according to the 1977 Penal Code, the 1948 Prevention of Terrorism Ordinance and the 1982 Criminal Procedures Law. However, military court jurisdiction can be extended to Palestinian residents of East Jerusalem if their alleged offense was committed in or otherwise has ties to the West Bank. Regular practice shows that very little burden is placed on the Prosecution to prove such a connection, and that arbitrary decisions are always taken to extend the interrogation period to the maximum, to allow the utmost flexibility for Israeli Security Agency (ISA) officers in their conduct during an interrogation and to reduce legal safeguards ensuring respect for international fair trial standards.

 

The first-hand experiences of Addameer defense lawyers demonstrate that the Israeli authorities often detain and interrogate Palestinians from East Jerusalem under military orders, a system that features pervasive physical and psychological abuse and ill-treatment and which permit longer periods of detention with little or no effective judicial oversight. Under the Israeli military judicial system, individuals (including children as young as 12) may be detained without being brought before a judge for up to eight days,[17] and without access to legal counsel for up to 90 days.[18] In total, detainees in the military system may be held without charge for up to 188 days.[19] By comparison, individuals in Israel who are accused of security offences within the Israeli civil system may be detained for a maximum of 4 days before going before a judge, can be denied access to legal counsel for up to 21 days and may be held in custody without being charged for up to 64 days[20]. After interrogation Palestinians are then transferred to the Israeli civil system for trial, a move that permits prosecutors to seek higher sentences for Jerusalemite defendants based on the principle that ‘security’ offences are less common in the Israeli civil system than in the military system in the oPt, and therefore require a harsher penalty. As a security prisoner within the Israeli civil system, Palestinians are denied the rights afforded to an Israeli criminal prisoner. Typically, Israeli criminal prisoners are entitled to earn money inside the prison system, receive family visits without the imposing presence of a glass divider, have as many books or other items they want in their cell, and long-term prisoners are allowed to take occasional visits outside the prison; privileges which a Palestinian prisoner is denied.

 

Through this manipulation of law on the basis of territorial status, Jerusalemite prisoners are subjected to the most oppressive aspects of both military law and Israeli civil law. This deliberate strategy precludes Jerusalemite prisoners from enjoying their right to a fair trial, a fundamental human and humanitarian right recognized in Article 147 of the Fourth Geneva Convention and Article 14 of the International Covenant on Civil and Political Rights.

 

At present, Palestinian political prisoners are held in 26 central detention facilities, including 19 prisons, four interrogation centers and three detention centers. The vast majority of these facilities are located within Israel’s declared borders, meaning that Palestinian political prisoners – including those from Jerusalem – are forcibly and unlawfully transferred outside occupied territory and into the occupier’s territory. Such transfer is in direct violation of Article 49 of the Fourth Geneva Convention, which “prohibits forcible and collective transfer or deportation of protected persons from the occupied territory into the territory of the occupation power”, as well as Article 76 of the Convention, which stipulates that “accused protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein”.

 

Moreover, all of these facilities are incompatible with the standards prescribed by international treaties, especially with regards to the provision of health services.[21] Jerusalemite prisoners routinely suffer from exacerbated medical conditions due to medical negligence, and are frequently exposed to torture and ill-treatment throughout the process of arrest, interrogation and detention. At least seven Jerusalemite political prisoners have died as a result of medical negligence while in Israeli detention,[22] and three prisoners from Jerusalem have died after being tortured during interrogation.[23]

 

The aftermath of the Oslo ‘peace process’ created a sharp decline in the national values of the Palestinian struggle, reducing the living conditions of Palestinians to standards of “bare life”^[24]  and directly affected the prisoners’ movement. Subsequent research on the impact of the Oslo years on the prisoners’ movement has described it as “nothing short of an earthquake”.[25] Addameer contends that the ongoing exclusion of Jerusalemite prisoners from prisoner exchange and release negotiations and the deliberate distinction policy between Jerusalemite and West Bank/Gazan prisoners, violates Israel’s obligations under international law and makes a mockery of the PA’s duty to act in the interests of all Palestinians under occupation, and has severely eroded the unity, persistence and integrity of the Palestinian collective struggle and prisoner movement.

 

After being excluded from all peace negotiations throughout the past 16-plus years, Jerusalemite prisoners continue to emphasize the importance of having their voices heard. The call to have their needs met exists on two fronts. This call is directed first towards the Israeli authorities, who undermine the dignity of the Palestinian prisoner struggle by couching prisoner releases in the terms of “good will gestures” and manipulating them as leverage to improve their public relations and global image. As suggested by Sahar Francis, the General Director of Addameer:

 

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