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Terrorism and Democracy | Issue No. 16

HCJ Rejects Petition against Holding Detained Palestinians in Israeli Territory

HCJ 2690/09 | March 28, 2010 Author: Adv. Ido Rosenzweig, Prof. Yuval Shany

On 28 March 2010, the Israeli High Court of Justice (HCJ) published a judgmentHCJ 2690/09 Yesh Din et al v. Commander of the Military Forces in the West Bank, 28.3.2010. <Hebrew> rejecting a petition to order the State to refrain from holding Palestinian prisoners and detainees in facilities located in Israeli territory within the Green Line, and to stop conducting legal proceedings in military courts located within this territory, in violation of the non-deportation provisions of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949. The HCJ held that since national legislation overrides the provisions of international conventions to which Israel is party, including conventions that reflect customary international law, the petition should be rejected. Moreover, the Court noted that from an international perspective, it is more important to comply with the substantive notions advanced in these articles, which guarantee a detainees' due process and human rights, then with their formal contents.

Since most of the relevant Palestinian detainees have been charged with offenses related to terrorism, this article presents a summary and discussion of the case as part of the IDI's Terrorism and Democracy Newsletter.

Since the beginning of Israel's belligerent occupation in the West Bank and the Gaza Strip, Palestinian detainees and prisoners have been held in Israeli territory. Up until the early 1990s, the vast majority of the detainees were held in detention facilities in the West Bank and the Gaza Strip. However, following the process of withdrawal of Israeli forces from part of these territories, increasing numbers of Palestinian detainees were moved to facilities in Israeli territory within the Green Line (6,594 Palestinians are being held in Israel's territoryOut of the 6,594, 1,362 are detainees, 1,104 criminal prisoners and 4,168 security prisoners.). Currently, there is only one detention facility remaining in the West Bank (in which 691 Palestinians are being held). Under Israeli law, the Emergency Regulations (Judea and Samaria - Adjudication of Offenses and Legal Aid) 1967 - 5727 (hereinafter: "the Regulations") provide a basis for the legal authority to hold Palestinians in Israel and to conduct therein legal proceedings to extend their detentions.These regulations were repeatedly extended and are in force according to The Law Amending and Extending the Validity of the Emergency Regulations (Judea and Samaria - Adjudication of Offenses and Legal Aid), 5767 - 2007, which extends these regulations until 30 June 2012.

The legality of holding Palestinian prisoners and detainees in Israel was first challenged before the HCJ more than twenty years ago.HCJ 253/88 Sejadia v. Minister of Defense, IsrSC 43(3) 801 (hereinafter: the Sejadia Case). <Hebrew> At the time, the HCJ rejected the petition in the Sejadia Case after concluding that in the event of a conflict between national law and international law - in this case, Article 6 of the Regulations versus Article 49 of the Fourth Geneva Convention (which prohibits the removal of protected persons from the occupied territory) - national law prevails. Hence, under Israeli law, the holding of Palestinian prisoners and detainees in Israeli territory within the Green Line is lawful.

The petitioners in the 2010 case claimed that in the two decades that have passed since the issuance of the ruling in the Sejadia Case, there have been changes both in the situation on the ground (especially with regard to the freedom of movement between the West Bank and Israel) and with relation to the status of the Fourth Geneva Convention in the Israeli legal system. According to the petitioners, the detention of Palestinian prisoners and detainees in Israel violates Articles 49 and 76 of the Fourth Geneva Convention and infringes on the Palestinian detainees' most basic right to family life, because the travel restrictions imposed on residents of the West Bank make entry into Israel for such visits impossible in most cases. Moreover, the petitioners claimed that legal proceedings in Israeli territory that involve Palestinian detainees violate Article 66 of the Fourth Geneva Convention. The petitioners also argued that in the intervening years any doubts concerning the customary international law status of the Fourth Geneva Convention have dissipated.

In its response, the State claimed that the HCJ's ruling in the Sejadia Case should remain in effect, since there has not been a substantial change in the circumstances that would require the Court to review this decision. Moreover, the State claimed that a change in detention policy, as advocated by the petitioners' claim, would be detrimental to Palestinian interests, as it may require the expropriation of West Bank land in order to construct new holding facilities.

On 28 March 2010, the HCJ published its decision to reject the petition.

The President of the Court, Justice Dorit Beinisch, who wrote on behalf of the Court, held that there is no reason to revise the Court's decision in the Sejadia Case. Even if the claim that the relevant provisions of the Fourth Geneva Convention now reflect customary international law is accepted, the specific national legislation enacted in Article 6 of the Regulations prevails over conflicting international law norms.

Nevertheless, Justice Beinisch held that the Geneva Conventions must be interpreted in light of the circumstances prevailing in the West Bank, the special features of Israel's control over that area, the duration of this control, the nature of the region's topography, and the links between Israel and the West Bank. Such a contextual interpretation should focus on the rights of the protected population, including the detainees, regardless of the location in which they are being held.

The facilities in which the Palestinian detainees and prisoners are being held in Israel are managed by the Israeli Prison Service and the conditions in these facilities, which are the same as in any other detention facility in Israel, are much better than in those administered by the military in the West Bank, which do not tend to comply as fully with the relevant international detention standards.

With regard to the petitioners' challenge to the legal proceedings against Palestinian detainees in Israel, Justice Beinisch held that since Article 6(b) of the Regulations allows the conduct of such proceedings in Israel, the same conflict resolution principle mentioned above applies here as well. However, it should also be noted that for most detainees, only proceedings regarding the extension of detention periods are being conducted in Israeli territory; the substantive charges against them are conducted before military courts located in the West Bank. This "division of labor" limits the distance detainees have to travel for detention-related proceedings.

In her decision, Justice Beinisch relates, inter alia, to the interpretation and application of the Geneva Conventions in the area in light of the particular conditions prevailing in the West Bank. According to Justice Beinisch, the fulfillment of the essence of these conventions is more important than close adherence to its specific wording. While this lack of formalism may be understandable at some abstract level, the protection afforded by  international treaties in the field of human rights and humanitarian law may be seriously diluted if the decision whether or not to abide by the letter of the law is left to the sole discretion of the occupying parties. Furthermore, even Justice Beinisch's approach requires that the humanitarian interests protected by the non-removal provisions of the Fourth Geneva Convention - in particular, the right to receive family visits and to access local legal representatives - be ensured when the detainees are held in Israel. Greater scrutiny of these specific aspects by the Court may have limited the adverse implications of the decision of the Israeli legislature to deviate from the detention protocols contained within the Fourth Geneva Convention.

Notes

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