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Audrey Bomse, Esq.

Since 1967, when the West Bank and Gaza were first occupied by Israel, over 650,000 Palestinians have been detained for resisting the Israeli Occupation by political, military and other means. This constitutes approximately 20% of the total Palestinian population in Occupied Palestine and 40% of the total male Palestinian population. A majority have been subjected to physical and/or psychological abuse, often amounting to torture. Approximately half a million Palestinians have been prosecuted in Israeli courts. An extraordinary percentage of them, between 95-97%, have been convicted. Thousands have been held for long periods of time in administrative detention, without charge or trial. Included among the detainees is the pivotal national political cadre who mobilized the resistance.

Prison is a central feature of Palestinian life. The large-scale use of imprisonment must be seen in a political context. The occupation of Palestine by Israel is a system of control, permeating every aspect of Palestinian life and is designed to keep more than 4 million people under submission. Although the role of the Israeli army is critical in enforcing this control, the system runs much deeper and prison is a critical part. Mass imprisonment is a conscious policy aimed at demoralizing and defeating the population, designed not only to punish, but also to intimidate. It is intended to convey the message that resistance is useless and is designed to render the population passive. Its effects extend far beyond the numbers of people imprisoned. Through this policy, Israel sends a strong message to the Palestinian population: resistance to the occupation comes at a heavy price.

Israel justifies its action by arguing that there is a widespread threat of ‘terrorism’ and that the ‘security’ of Israeli civilians requires such whole-scale imprisonment. This security justification is used as a smokescreen to obscure deliberate policies of repression and collective punishment of a civilian population. Any form of resistance to the military occupation is defined as a threat to the security of the state of Israel. The fact that Palestinians universally reject Israel’s occupation by definition makes each and every Palestinian a security threat.

Palestinians are arrested, prosecuted, tried and imprisoned entirely within the Israeli military system. Many have never been charged, no less convicted of any "criminal or security offense," yet have been detained indefinitely, under administrative detention orders. Others have been released without ever being charged, after days or even weeks in which they were subjected to coercive interrogation and were confined in inhumane conditions. Still others have been treated as criminals, as Israel has labeled criminal every act opposing the Occupation, such as "behav[ing] in an insulting manner towards any of the authorities of the Israeli Defense Forces within the region or any of its representatives." They have been tried in military courts, where the procedures are summary and lacking in due process and where the judicial system lacks neutrality. Judges and prosecutors are appointed by the Israeli military, the same body that arrests, detains and interrogates the defendants. Moreover, the military’s primary role in the Occupied Palestinian Territory (OPT) is to maintain the occupation, and the Palestinian defendants prosecuted in military court are by definition accused of opposing this occupation. The military courts offer a façade of justice to the process of detention and sentencing, while in reality they serve as a linchpin of the occupation.

The majority of sentenced Palestinian prisoners are serving long-term sentences, including multiple life sentences. The sentences handed down by the military courts are not based on objective legal standards, but rather on Israeli policy objectives and are influenced by the prevailing political situation. Since the beginning of the current intifada (uprising) in September 2000, there has been a significant increase both in the length of sentences and the number of long-term sentences handed down.

Also at issue here – which this article does not go into - is the substantive question of both the right of a people living under an oppressive occupation to act in opposition to that occupation and the scope of that right, specifically, whether it extends to the use of force, and if so, within what limits. In the foreground of such concerns is the need to distinguish between permissible and impermissible uses of force, and specifically to situate the matter of "terrorism" so as to take account of oppression and resistance.

Violations by Israel of International Law and Human Rights

In apprehending and detaining the Palestinian prisoners and detainees and in subjecting them to inhumane conditions, including torture, Israel has violated a number of provisions of international law, as well as its own domestic law, not to mention fundamental human rights.

Israel arrests Palestinians of all ages from cities, villages and refugee camps throughout the OPT, as well as at Israeli military checkpoints and border crossings. Soldiers often arrest activists, particularly juveniles, on the street, simply on suspicion of throwing stones at the Israeli troops. But most arrests occur at home, usually at night, with groups of soldiers banging on or breaking down the door, then entering the house and terrifying its occupants, and humiliating, sometimes beating the arrestee in front of his family. The arrest process is almost always accompanied by degrading and inhumane treatment. As one example, on December 5, 2001, Israeli soldiers at a military checkpoint in Khan Younis, Gaza, forced six Palestinian passengers in a taxi to get out, remove their clothing, and walk in the cold rain, hands above their heads before being arrested.

Some times, during invasions of Palestinian residential areas, all males between the ages of 15-45 are rounded up and detained, without probable cause to believe they were involved in any "criminal or security" risk behavior, both as a form of collective punishment and as a means of obtaining information. For example, on April 2, 2003, the Tulkarem Refugee Camp was invaded by a large force of Israeli soldiers and border police, backed up by attack helicopters, tanks and hummers. They ordered all men and boys between 15 and 45 to leave their homes and held them for many hours, interrogating them one by one. The army eventually detained 13 men who they claimed were "wanted terrorists." The majority of the approximately 3,000 other men and boys were taken several kilometers away in trucks and were dumped in the streets and ordered not to go back home for three days. Perhaps the most alarming aspect of this campaign of mass arbitrary arrests is that people are arrested and abused simply for being male and Palestinian. When they are arrested, they are not charged with any crime and they have no legal recourse. Military orders are written so broadly that, in effect, any Israeli soldier or police officer can detain a Palestinian at any time. Moreover, they have total license in the way they treat the detainees, with no external monitoring or observation.

Images of groups of detainees sitting blindfolded and handcuffed are a common sight in Palestine. The large number of people arrested and detained for a short time with very little interrogation, and the consistent use of degrading treatment, makes it appear that the aim of such large-scale arrests is to collectively punish and to humiliate Palestinians, in general. Such mass round-ups are also an attempt to criminalize the entire Palestinian population by equating it with "terrorists."

The detainees have few rights. Probable cause is not required for arrest, an attorney need not be provided and one does not have the right to refuse to speak. Prohibiting a detainee from meeting with his/her attorney is routine policy and detainees are often held for periods of up to 3 months without being allowed to meet with counsel. The importance of this lack of access to counsel cannot be sufficiently stressed. A lawyer can, from the moment of detention, advise the detainee of his rights – including the right not to incriminate himself or others - and ensure that those rights are respected. The denial of counsel also contributes to the detainee’s psychological isolation and prevents any direct external witnessing of the abusive treatment and its results.

If charges are not brought, the detainees are often almost literally thrown out of detention, released without identity papers or money, sometimes still handcuffed, many miles from home. Such mass arbitrary arrests and detentions violate international human rights and humanitarian law. They violate personal freedom and harm the individual's family and livelihood. The Geneva Conventions require, at minimum, a "status determination" of each and every detainee before a "competent tribunal." No person should simply be detained without due process, no matter who he or she is.

A large percentage of Palestinian detainees are subjected to torture during interrogation. The Israeli Security Agency has, for many years, systematically used torture in order to obtain information and coerce confessions from Palestinian detainees. The methods of torture include beatings, sleep deprivation, denial of medical care, threats of physical or sexual abuse of the detainee and/or his family, violent shaking, excessive shackling of hands and feet so as to cause injury, and “shabah,” an infamous practice, in which the detainee’s hands are tied behind the back of a chair and his/her feet are tied to the chair-legs. These methods are designed to inflict a maximum amount of pain, while leaving a minimum amount of physical evidence. Given the prevailing climate of fear and the exposure to physical mistreatment and intimidation, most detainees confess, even if they are innocent. Confessions obtained in this manner are inherently unreliable.

Such abuse is not arbitrary or accidental. The fact that the same types of physical and psychological abuse are recounted by so many detainees indicates their deliberate use. The use of torture is a conscious decision by the Israeli state, part of an overall strategy aimed at weakening any actual or potential resistance to occupation. It is not aimed solely at the individual, but at the entire Palestinian society. It is used by one group against another as a means of domination and control and as a means of undermining sources of strength and resistance.

Torture is absolutely prohibited, under any circumstances, by international law. Both the Third and Fourth Geneva Conventions strictly forbid torture and it is described as a "grave breach" under Article 147 of the Fourth Convention, making it a war crime. Torture is also categorically prohibited by the Universal Declaration of Human Rights (Article 5), the International Covenant on Civil and Political Rights (Article 7), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Israel is a signatory to these key human rights covenants, and is therefore legally bound by their prohibitions. Torture is also contrary to Israel's Penal Code.

Until 1999, the use of torture was perfectly legal in Israel. In a landmark ruling, after years of work by human rights organizations and individual lawyers, the Israeli High Court of Justice (HCJ), in September 1999, banned a number of interrogation methods consistently used, including shaking, prolonged squatting on haunches, painful handcuffing, shabeh (prolonged sitting or standing in painful positions), and hooding. However the judgment left several loopholes by which methods amounting to torture or other ill-treatment might continue. The HCJ ruled that only means ''other than that which is inherently required by the interrogation'' were forbidden; sleep deprivation under intensive interrogation and other forms of "moderate physical pressure" were not expressly forbidden. In addition, interrogators may still claim the ''defense of necessity'' in cases where they use physical pressure on detainees. The many reports of torture from Palestinian detainees reveal that the High Court of Justice ruling of 1999 is no longer being followed.

The violation by Israel of minimum basic international human rights law standards regarding the conditions of confinement of Palestinians is systematic, and the detainees’ basic rights, health and human dignity are regularly abused, without even an attempt to cover up the wrongdoing. Israeli prisons and detention centers are severely overcrowded; detainees are regularly forced to sleep on the floor. The isolation, poor sanitary conditions, inadequate medical care, food and housing compound the problem. Many cells are insect and rat-infested. Palestinian child detainees are sometimes confined with criminal adults and most are denied access to any sort of education. Despite the efforts of the International Committee of the Red Cross (ICRC), family visits to prisoners are either completely denied or made near impossible by Israel’s repeated closure of the OPT. Lawyers from the OPT are similarly prevented from seeing their clients. Palestinian prisoners regularly protest their inhumane conditions of confinement and their non-violent protests are often put down by Israeli police using excessive force.

There has been mass arbitrary detention of Palestinians under administrative detention orders. Administrative detention is detention without charge or trial, authorized by a senior military official’s order rather than by judicial decree. It is renewable indefinitely every six months, so the administrative detainees do not know when they will be released. While most detainees receive a six-month administrative detention order, some have served years. The number of people held in administrative detention has historically reflected the political situation, as it is used as a means of collective punishment during times of conflict. It has also been used as a means of punishing those against whom there is not enough evidence to bring to trial, or even to intimidate lawyers and other human rights workers, as well as Palestinian political and community leaders. There are currently more than 650 Palestinian administrative detainees.

Administrative detention is permitted under international law, however, only as an exceptional measure "if the security of the Detaining Power makes it absolutely necessary." It cannot be used as punishment. It may only be resorted to when other, less severe measures have proved ineffective. Administrative detention must never be applied collectively, but only on an individual basis, relying on suspicions against the particular person. The procedure is much abused by Israel. While each administrative detention warrant must undergo a military judicial review, this summary proceeding in which basic due process rights - such as the right to be informed of the charges and to present a defense - are non-existent, does not prevent misuse of the measure, as the overwhelming number of warrants are approved. The evidence forming the basis of the order is secret and is not made available either to the detainee or counsel. Amnesty International has called for a commission of inquiry into recent mass arbitrary detentions of Palestinians.

Those prisoners who are charged, are detained in accordance with military orders and are tried as criminals in Israeli military tribunals that fail to meet international fair trial standards. The army's judicial system is a legal "assembly line," where the chances of a Palestinian getting a thorough and professional hearing are just about nil. The system is severely over-burdened due with some judges hearing 10 cases a day. 95-97 percent of Palestinians prosecuted in Israeli military courts are convicted, approximately 95% of them on the basis of plea bargains, both because most have signed confessions and because of the near impossibility of successfully contesting charges at trial. The military justice system bypasses many of the usual principles of law and rules of evidence. It includes judges who are not lawyers. A Palestinian child over 12 can be prosecuted before a military court. Access to legal representation is severely limited and evidence obtained through torture is admissible. All this is in clear violation of the Fourth Geneva Convention, which mandates access to adequate legal representation, as well as a fair trial. Justice is not done, nor does the system even make the effort to create the impression of doing justice.

To come into compliance with international law, as well as its own domestic law, Israel must immediately stop mass arrests. It must discontinue all methods of torture. All those currently detained without charges should be released immediately or charged and brought to trial. Those who have endured detention without cause and suffered torture during interrogation should be compensated. The interrogators should be investigated and, if found responsible for employing illegal methods of interrogation, they should be brought to justice.

But the issue of the Palestinian prisoners is first and foremost a political issue, the result of the struggle for national liberation; it cannot be divorced from the political negotiations in pursuit of freedom and independence. The fundamental issue is the Occupation and the struggle against it. Israel's military occupation itself is criminal. Palestinian fighters who fought against that illegal occupation - some of whom may themselves have behaved illegally - should be granted immunity from prosecution in Israel; they believed they were fighting for their country. If there is evidence of war crimes committed, it, along with the prisoners, should be turned over to the Palestinian Authority.

Moreover, for there to be peace in the region, combatants on both sides must be forgiven for the human rights violations they may have committed, and be permitted to re-enter life as normally as possible. Internal prosecutions of high-ranking officers and politicians, Palestinian and Israeli, who ordered war crimes and/or crimes against humanity - including suicide bombings by Palestinians the use of torture by Israelis against detainees - could then take place in both Palestine and Israel. If they do not occur, such prosecutions could take place in an international forum. In any case, peace is not possible without the prisoners' release.

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