Palestinian prisoners in Israel may enjoy protected rights under international law, but who will safeguard their enforcement? asks Erica Silverman Four large charter buses rolled towards Jalameh Israeli military checkpoint between the West Bank city of Jenin and Israel at 6am on 20 December 2006. On board were 222 eager Palestinian family members. Their final destination was Damoun Prison located in the Israeli coastal city of Haifa. Four hours later, the passengers cleared security inspections and the buses entered Israel, facilitated by the "family visitation programme" of the International Committee of the Red Cross (ICRC), where 83 Palestinian prisoners behind bars waited for the visits. Nabil and Huda Ward, along with their two teenage daughters were seated in the second row of one bus, on their way to visit their son Naseem, aged 26, for the first time since he was incarcerated in April 2002. Naseem was only permitted to see his lawyer after the interrogation process was complete. After awaiting trial for more than two years, he was convicted of firing at an Israeli soldier while on duty as member of the Palestinian National Security forces. He had direct orders to defend Jenin Camp during an Israeli invasion. Naseem is not considered a prisoner of war. Israel does not afford Palestinian Authority (PA) security forces the privileges of the Fourth Geneva Convention, since the Palestinian territories are not an official state, according to the Israeli Justice Ministry. Veterans of suffering under Israeli occupation, the Wards' daughter, Riham, was killed at the age of ten by Israeli forces in 2001, inside her classroom at Al-Ibrahim Girls School in Jenin. Their younger son Salah, was held in administrative detention, without charge or trail, inside an Israeli prison for one year and then shipped to the Gaza Strip in 2005, where he has been trapped ever since. There is no trial for administrative detention, but a periodical review of the case made by a review board which confers some procedural safeguards, according to the ICRC. As of November 2006, Israel has been holding approximately 700 Palestinians in administrative detention, according to the Israeli human rights NGO B'Tselem. The information that forms the basis for detentions is classified; this means that neither the detainee nor his lawyer can challenge it. Thousands have been held in administrative detention since the start of the Al-Aqsa Intifada. The ICRC monitors the condition of detention and treatment of all Palestinian detainees, estimated at 11,500 and including nearly 400 children and 120 women. Almost all are imprisoned inside Israel. Most Palestinians cannot gain access to Israel. Even with the help of the ICRC, family members are often denied permission to enter for the sake of prison visits. The ICRC asserts that Israel has not fulfilled its obligations under international law, specifically Article 76 of the Fourth Geneva Convention, which stipulates that citizens under military occupation cannot be removed from the occupied territory, thereby prohibiting family member visits. The Israeli army admits that most Palestinian detainees are imprisoned inside Israel, but argues that removing Palestinians from occupied Palestinian territory is approved by the Israeli High Court of Justice and is consistent with Israeli law. The Ward family hired an Arab-Israeli lawyer to represent Naseem. Palestinian lawyers do not do have access to Israeli courts, meaning the Israeli military court system. The lawyers who do practice in it are beyond Palestinian reach. Palestinians arrested by the Israeli army in the West Bank fall under the jurisdiction of Israeli "military legislation". This is a separate military court system that applies only to the occupied Palestinian territories, according to the Israeli army. "It is a collection of 'military orders' written by the [Israeli] military commander issued without any supervision. They are not approved by the Knesset," said Israeli lawyer Lea Tsemel, who has been representing Palestinians within this system for 35 years, and has tried several cases before the Israeli Supreme Court. "Military legislation fluctuates according to the situation," explained an ICRC legal advisor. "Military orders" are part of military legislation, down to the location of specific checkpoints in a complex network of more than 534 barriers erected to restrict Palestinian movement within the West Bank. Some of military orders give rise to the concern that they are incompatible with international law, according to the legal advisor. Israel is the occupying power, but the two parties are in conflict. It is difficult to claim that the system is objective. There is no trial for administrative detention, but a periodical review of the case made by a review board which confers some procedural safeguards, according to the ICRC. The prisoner issue is a particularly sensitive national issue for Palestinians. Most Palestinian families have had at least one family member imprisoned inside Israel. Thousands of Palestinian prisoners report that they were tortured. They say that this usually occurs during the interrogation process when they are first arrested, and before they see a lawyer. "Every person arrested upon suspicion of committing a crime must be brought before a judge within eight days of his arrest," according to the Israeli army, but "a military judge may order the suspect's continued arrest for investigation for up to 90 additional days." The detainee's right to an attorney "may be postponed" should "security needs require". Prisoners have reported to the ICRC that torture is used to obtain confessions or information. The ICRC has presented these cases to the Israeli Justice Ministry and Prison Authority, but declines to comment further. The Israeli Justice Ministry asserts that "moderate force" is permitted during interrogation if a person "is a ticking bomb", but that torture is forbidden. The chairperson of the Prisoners' Committee in the Palestinian Legislative Council, Khalida Jarar, says that the use of torture by the Israeli military during interrogations has decreased as new methods, harder to detect, have been adopted. These methods include violent shaking; sleep deprivation; and solitary confinement. "Collaboration rooms" are still used, according to Jarar, in which Israelis impersonating Palestinians coax the prisoners into speaking about nationalistic activities. The statements are later used against the prisoner as confessions. Palestinians can receive sentences ranging from six months to ten years for membership of a Palestinian militant faction. Meanwhile, nearly 10,000 Gazans rallied around the Palestinian legislative building in Gaza City last week in support of Hamas's continued holding of an Israeli soldier captured in June 2006. Many of the demonstrators were women, hoping that a prisoner exchange would return their loved ones home to them. Hamas and affiliated factions captured Gilad Shalit on 25 June, in an operation near the Gaza-Egypt border. Negotiations for his release are ongoing, mediated primarily by Egypt. On 26 June Israel launched Operation Summer Rain with the announced goals of freeing Shalit and halting rocket fire into Israel from Gaza. According to an annual report published by B'Tselem, 405 Palestinians were killed in Gaza by Israeli forces since 25 June, including 88 children and 205 bystanders. Israeli forces destroyed the main power station in Gaza, with many residents still today deprived of electricity. For its part, Israel claims that Gaza is no longer "occupied", following its September 2005 withdrawal. The Israeli army adjusted its detention policy accordingly. Now Palestinians arrested in Gaza are held according to the "laws of armed conflict." They are tried as citizens of a foreign country, according to the Israeli Justice Ministry. Palestinians assert Gaza is still "occupied" given that Israel retained control of Gaza's commercial and passenger border crossings, as well as its air and sea space. Karni, Gaza's only commercial crossing point, has been closed for more than half of the past year. Rafah, the only passenger crossing, opens only sporadically. "They kidnap people from Gaza and try them in Israeli civilian courts, according to a law that anyone who acts against the State of Israel can be sentenced inside Israel," says Tsemel, currently defending Islamic University Professor Younis Abu Daka who lives in Gaza. Daka was arrested and deported to Israel for running in the legislative elections on the Hamas ticket a year ago. This is despite Israel's having approved Hamas's participation in the elections. Back in the West Bank, the Wards anticipate the release of Naseem in April 2008, although they fear that like his brother, he will be sent to Gaza, instead of being allowed to return home. Sending West Bank residents to Gaza upon their release has become common Israeli practice, in direct violation of international law.
