As the Occupying Power in the Occupied Palestinian Territory (OPT), Israel remains subject to numerous obligations under international human rights and international humanitarian law. Article 76 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War clearly outlines the rights of protected persons when facing detention by an Occupying Power. Amongst these rights is the right to remain in the occupied territory during all stages of detention, including during the serving of prison sentences if convicted. The vast majority of Palestinian prisoners are currently held within Israel, with the result that their families from the OPT face extreme difficulties in visiting them. Also included in Article 76 are the occupying power’s obligations to provide adequate medical care, and to provide special protection for women and child detainees. Furthermore, the Fourth Geneva Convention contains several provisions providing for due process and administration of justice guarantees. Finally, it is worth noting that the “unlawful deportation or transfer or unlawful confinement of a protected person” or “wilfully depriving a protected person of the rights of fair and regular trial” constitute grave breaches of the Fourth Geneva Convention. This gives rise to the legal obligation on all 194 High Contracting Parties to the Convention to provide effective penal sanction for persons committing or ordering the commission of such grave breaches, and to search for and prosecute such persons. With regard to international human rights law, Article 9 of the International Covenant on Civil and Political Rights, which Israel ratified in 1991, places obligations upon Israel in relation to due process in pre-trial detention. Article 14 imposes obligations dealing with the right to a fair trial.

Imprisonment of Children

The Convention on the Rights of the Child, ratified by Israel in 1991, states that the imprisonment of children must only be used as a measure of last resort. In reality, imprisonment is the most common form of punishment for Palestinian children detained by Israel. There are no specialised procedures for dealing with children during arrests, interrogation or trial. From the age of 12, Palestinian children can be arrested and are subject to the same procedures as adults. At age 12, for example, a Palestinian child can be sent to prison for six months for stone throwing. Between the ages of 14 and 15, if convicted, a Palestinian child can receive a maximum sentence of 10 years in prison for each charge irrespective of its nature. Palestinian children aged 16 and above are subject to the same rules of procedure and sentencing as adults. As with all other Palestinian residents of the OPT, children are tried before military courts. Also, children can be held incommunicado, often in substandard conditions, for up to eight days during which time they are denied access to their family or lawyers. They are rarely accorded bail and are frequently subjected to severe psychological and physical duress that in many instances amounts to torture or cruel, inhuman or degrading treatment. Under these circumstances, children are compelled to confess prior to the “trial”. A child convicted of an offence will, in the vast majority of cases, be imprisoned.

Arrests of Palestinian Officials

Over the past years, Israel has arrested and imprisoned 41 Palestinian Legislative Council members, who were democratically elected by the Palestinian people in a process directly sanctioned by Israel and the international community. That 33 of these arrests took place in the immediate aftermath of the capture of Israeli Army Corporal Gilad Shalit in Gaza strongly indicates that this is a form of collective punishment. Under Article 33 of the Fourth Geneva Convention, nobody shall be punished for an offence that they have not personally committed. Furthermore, there have been indications that the elected members have been arrested with a view to using them as bargaining chips in negotiations for the release of Gilad Shalit. Such a scenario would constitute a clear breach of Article 34 of the Fourth Geneva Convention, which prohibits the taking of hostages.

Administrative Detention

As applied by the Israeli authorities, administrative detention refers to the imprisonment of Palestinians, without charge or trial, through the use of administrative rather than judicial procedures. By virtue of Military Order 1229 (1988), military commanders can detain Palestinians for indefinitely renewable periods of up to six months if they have “reasonable grounds to presume that the security of the area or public security require the detention.” This allows the military commander total discretion in issuing administrative detention orders. The orders, which are reviewed by a military judge, can be appealed to a separate military judge. However, it is almost inevitably the case that the administrative detention order is upheld at the appeal stage. Administrative detention orders are issued on the basis of “secret evidence.” This evidence is not disclosed to the detainee or his legal counsel at any stage of either the review or appeal. There is therefore no opportunity to meaningfully challenge or refute the alleged grounds justifying the detention order.

Access to Health Care and Adequate Food

Although Israel has prison regulations dealing with the provision of health care and food, their implementation often falls dramatically short of the United Nations’ Standard Minimum Rules for the Treatment of Prisoners, as well as substantive provisions of international humanitarian law in the case of Palestinian prisoners. Although serious illness amongst prisoners is common, proper medical care is rarely provided, and what care is available entails long delays placing prisoners in need of urgent attention in further jeopardy. Specialised doctors and services are not regularly available, and over-the-counter painkillers are administered as a remedy for almost all health problems. Pregnant women are in a particularly vulnerable position. Indeed, there have been reports of women being handcuffed during delivery. The food provided to prisoners is often insufficient and inmates are forced to rely on relatives to bring them adequate food. Special needs, such as for individuals suffering from diabetes, are neglected. As a result of the serious neglect of prisoners’ health, individuals often come out of prison with severe health problems both physically and psychologically.

In light of the serious violations of international law highlighted above, Al-Haq calls upon:

• Individual member States of the United Nations to call upon the Human Rights Council to address the issue of Palestinian prisoners at its next session, with a view to appointing a commission of inquiry to investigate the legal implications of Israel’s administration of justice for Palestinians, including their treatment while incarcerated.

• The High Contracting Parties to the Fourth Geneva Convention to fulfil their legal obligation under Article 1 to ensure that Israel respects the provisions of the Convention, and to search for and prosecute the perpetrators of grave breaches of the Convention.

• Members of the European Union to implement the EU Guidelines on promoting compliance with international humanitarian law, with a view to ensuring that the fundamental principles of the right to a fair trial are upheld by Israel.