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The purpose of the report is to give a brief overview of the current status of Palestinian lawyers from the Occupied Palestinian Territories (OPT) with regards the Israeli judicial system and the status of Palestinian prisoners detained by the Israeli authorities. The problems encountered by the Palestinian legal profession in gaining access to the Israeli judicial systems are relevant to all cases in which Palestinians are brought before, or wish to bring cases themselves before, the Israeli courts. However, for the purposes of this report, the problems and issues identified will be discussed primarily in relation to the rights and status of Palestinian prisoners detained in facilities inside Israel.
The report is structured in three parts. The first section identifies the problems encountered by Palestinian lawyers from the OPT in accessing the Israeli judicial system, including the lack of access to Palestinian prisoners detained in Israeli prisons. The second section will summarize the status of Palestinian prisons detained in Israel, including the implications of the denial of access to a Palestinian lawyer, prison conditions, and torture and ill treatment. This section will also highlight recent developments in arrests made by the Israeli authorities, particularly in the context of the Israeli military incursions into areas A in recent months. The final section will briefly summarize the detention of Marwan Bargouthi, elected member of the Palestinian Legislative Council and outspoken figure of the Al Aqsa Intifada.
The Status of Palestinian Lawyers from the OPT
Historically, the treatment of Palestinian lawyers by the Israeli authorities, has been characterized by a total lack of respect, ranging from a general obstructionist attitude and harassment, to beatings, even arrest during the course of their duties. The status of Palestinian lawyers today has deteriorated still further; currently, Palestinian lawyers are not recognized by the Israeli authorities and have no direct access to the Israeli judicial system.
Freedom of Movement Restrictions
Lawyers, like all Palestinians from the OPT, were, and continue to be, subject to increasing restrictions on the freedom of movement. Prior to the establishment of the Palestinian Authority, Palestinian lawyers from the OPT were allowed some access to the Israeli legal system and to clients held in detention inside Israel. This access was restricted by a system of permits, both for travel to Israel and for access to individual detention facilities. All Palestinians required travel permits for access to Israel, including the system of magnetic cards which were issued following extensive security checks, including into civil affairs. These cards and other permits were used to deny access to Israel for increasing numbers of Palestinians. In addition, Palestinian lawyers required additional documentation including:
a) Lawyer’s professional identification cards;
b) Special permits in order to visit Palestinians detained and imprisoned in Israel. These permits were valid for one year and obtainable from the Israeli Civil Administration’s Officer in Charge of Legal Affairs. Israel carried out extensive security investigations into all applicants for permits, and often used it as a pretext to restrict freedom of movement;
c) Special permits for access to each individual Israeli prison or detention facility.
Treatment of Palestinian Lawyers
In addition to the "official" restrictions placed on Palestinian lawyers, their treatment by individual members of the Israeli authorities further hampered their abilities to discharge their duties to their clients. Palestinian lawyers visiting clients detained in facilities inside Israel were often subjected to particularly harsh treatment by prison guards, including inappropriate or unnecessary searches, verbal and physical harassment, even beatings.
Lawyers were often made to wait for hours before having access to their clients. In some cases the lawyer would arrive at the prison for an arranged visit to discover that their client had been moved to another prison without prior notification. There were also restrictions imposed on lawyer-client meetings, which often had to be conducted within the view/hearing of prison guards in open areas. Lawyers were refused the use of prison facilities, including the toilets.
These restrictions and treatment obviously seriously impacted on the ability of Palestinian lawyers to discharge their duties to their clients effectively. However, with the arrival of the Palestinian Authority the status of Palestinian lawyers deteriorated still further. In 1995, the system of special permits issued by Israel, which allowed Palestinian lawyers to visit Palestinian detainees, was cancelled, and applications, both first-time and renewals, by the Palestinian Bar Association, individual lawyers and human rights organisations were consistently rejected. Many received no response at all.
Current Status of Palestinian Lawyers
Palestinian law provides a system of professional recognition and registration for lawyers. All Palestinian lawyers are required to possess professional identification cards issued by the Palestinian Bar Association, and to register with the Chief Registrar of the Palestinian High Court of Justice. However, this system is not recognised by the Israeli authorities.
Currently, within the OPT, only those Palestinian lawyers who have been trained and licensed in Israel are able to practice in Israel. Since only those Palestinians who are residents of Occupied East Jerusalem (annexed to Israel following the 1967 war) have access to Israeli educational institutions, effectively only Jerusalemites with Israeli legal training can practice in Israel. In addition, since the beginning of the second Intifada in September 2000, Israel has imposed a continuous closure throughout the OPT, in particular on the Gaza Strip, effectively denying entry for any Palestinian, except in an extreme minority of cases, into Israel. In 2002 the closures have been tightened still further and at present there is no administrative system through which lawyers, or any other Gazan, can apply for permission to travel into Israel.
Clearly, the refusal of the Israeli authorities to recognize Palestinian lawyers from the OPT has serious implications for Palestinians from the OPTs requiring legal assistance, particularly those held in Israeli detention facilities. Since 1995 Palestinian lawyers have continued their work, representing Palestinians detainees, and others in need of legal representation, through the use of Israeli lawyers. This system is problematic for a number of reasons which will be detailed below. However, it has ensured that Palestinian lawyers have been able to provide a minimum level of service to Palestinians prisoners.
Current Demands for Legal Aid
During the first 18 months of the second Intifada the level of the legal representation required by Palestinians from the OPT increased in most areas, but there remained relatively few arrests. There was a dramatic increase in the number of cases of unlawful or wilfull killings and injuries, and of house and property destruction <#_ftn1> . Action taken on these cases, includes legal complaints, requests for investigations and reparation. In all such cases Palestinian lawyers were forced to work through Israeli lawyers.
However, since February 2002, the situation in the OPT has continued to deteriorate to an unprecedented degree, particularly with respect to the intensified military incursions into Areas A in the West Bank and the Gaza Strip. These incursions have been characterized by large-scale killings and injuries of civilians, wanton destruction of civilian property, curfews and closures, denial of medical care and access for humanitarian agencies. In addition, these incursions also witnessed mass arrest campaigns in which up to 10,000 Palestinians may have been detained since February 2002. These arrests were conducted in towns, villages and refugee camps throughout the OPT, in particular in Jenin, Nablus, Ramallah, Hebron and surrounding refugee camps and included the "rounding up" of all males between the ages of 14 and 48. The detainees have been routinely subjected to varying forms of ill treatment; in some cases, torture. These detentions were largely arbitrary and unlawful. Many were released within days but a large number remain in detention as will be detailed below. The need for effective and qualitative legal representation in such cases is clear but the ongoing refusal of the Israeli authorities to recognize Palestinian lawyers from the OPT has effectively ensured that the rights of the vast majority of the detainees were flagrantly ignored.
Israeli Judicial System
The Israeli justice system is comprised of two parallel courts; the civil courts and the military courts. Israeli citizens are tried in civil courts. In contrast, however, all Palestinian prisoners are tried in the military courts. Military courts routinely violate international minimum standards for fair trial, as regularly acknowledged by inter-governmental bodies, and international human rights organisations such as Amnesty International. Sentences passed down by the military courts are often excessive and disproportionate. In many cases the Military Prosecutor does not submit proper evidence against the defendant. In the absence of a defence lawyer, sentence is passed without defence submissions, or defence challenges to prosecution submissions. Usually, pre-trial detention is extended by the ruling of a single judge, and without legal counsel. Often, the sub-standard trial procedures go unchallenged as defence counsel are not admitted to the Courts. Additionally, though some of the military courts are geographically located within the OPT, they remain under the total control of the Israeli military and therefore access to these areas is as restricted as for courts and prison facilities inside Israel.
Implications of the denial of access for Palestinian Lawyers
Since effectively Palestinian prisoners and others in need of legal representation cannot be represented by Palestinian lawyers from the OPT, there are three options available; to hire Israeli lawyers; to seek legal aid services from Palestinian human rights organizations such as the Palestinian Centre for Human Rights; or have no legal counsel of their own choice.
Firstly, there are a number of problems of using Israeli lawyers either directly, or through legal aid services provided by Palestinian organizations. Israeli legal fees are far higher than Palestinian legal fees and are largely prohibitive to the average Palestinian. On average, an Israeli lawyer’s fee for a detainee is about 1.600 $US, which includes pre-charge sheet proceedings and first three hearings at the Military Court. Each additional session is charged 150 $US, and appeals to the Military Court will also be charged extra (from 150 to 400 $US depending on the case). In contrast, the average family income in the Gaza Strip, since the beginning of the second Intifada, is approximately $1.000 per year.
Even for organizations such as PCHR, the high costs of Israeli legal fees seriously restricts the number of cases undertaken and the level of representation which such organizations can provide to their clients. Few Israeli lawyers of the experience, professionalism and commitment required for such cases, work pro bono. The number of such lawyers is clearly totally inadequate for the number of cases of detainees, as well as other cases. Consequently, there is little hope that even a significant minority of detainees can receive the legal counsel and assistance to which they are entitled.
Language is an additional problem, since many Palestinians do not speak Hebrew, and translations or interpreters are rarely available within the military court system. There are also inevitable communication/language difficulties even between lawyer and client.
As a result violations of Palestinian prisoners' rights are routine, and often go unchallenged. Many Palestinian prisoners remain in detention, without charge or trial, in conditions which fail to meet the minimum international standards required and without legal counsel to challenge the specific and overall unlawful aspects of such detentions.
2. The Status of Palestinian Prisoners
The ongoing denial of access of Palestinian lawyers to the Israeli judicial system has serious implications both on the rights and the daily life of Palestinians detained inside Israel, both those recently detained and long term prisoners. The status of all Palestinian prisoners held in Israel has improved little in recent years. Detainees' rights are also routinely violated, and the denial of access to legal counsel of their choice only worsens their plight, effectively preventing challenges to the unlawfulness of their detention and detention conditions.
All Palestinians arrested by Israeli authorities are held in prisons and detention centres inside Israel. Upon arrest, Palestinians in the Gaza Strip are held in detention centres often within settlements or in the Erez military area for the initial period of investigation. In general, if the offence is minor the prisoners often remain in detention in the initial location. However, if following security checks the arresting officer wishes to continue the investigation further, or if the offence is more serious, the prisoner is transferred to a prison inside Israel. In the case of those arrested in the Gaza Strip, this is usually Ashkelon Prison. Prisoners are often then moved again to other prisons inside Israel.
The transfer of prisoners outside the OPT by Israel is a clear violation of international humanitarian law (Articles 49, 76 and 147 of the IV Geneva Convention).
As discussed above, since most Palestinian lawyers in the OPT are routinely denied any access to Israel to consult with their clients, the transfer of prisoners to Israel ensures that prisoners have little or no access to their own legal counsel. The right of a prisoner to legal representation and assistance of his choice is a founding principle of the right to a fair trial. All international conventions and instruments relevant to the rights of prisoners ensure this right. In particular Article 72 of the IV Geneva Convention states that,
…They shall have the right to be assisted by a qualified advocate or counsel of their own choice,….
The denial of access to legal counsel facilitates incommunicado detention and the consequent torture and ill treatment that are common to such detention. The prevalence of incommunicado detention of Palestinians by Israel is further supported by the fact that the International Committee of the Red Cross (ICRC) is required to be informed of the whereabouts of detainees only 14 days after the arrest and often visits of the ICRC to detainees are delayed still further. Often lawyers cannot locate detainees until official information has been given to the ICRC who may then inform the family. The family then communicates the information to a local Palestinian lawyer who can instruct an Israeli lawyer to visit the detainee. In practice, this process can take more than two weeks, sometimes longer. Thus, periods of incommunicado detention are common, placing Palestinian detainees at greater risk of torture and ill treatment. These periods of incommunicado detention also contradict guarantees that families be informed promptly of the location of the detainee. This is ensured by Rule 27 of the UN Standard Minimum Rules for the Treatment of Prisoners, adopted in 1955.
In addition to prolonged periods of incommunicado detention and the related realities of torture and ill treatment, Palestinian detainees are often brought before the military court within 4-7 days, and have already been sentenced before they have had access to any advice, assistance or legal counsel. In some cases defendants are ordered to pay a fine as their sentence, only upon payment of which they can be released. However, as prisoners do not have contact with their family or a lawyer, they can remain in prison for months before the fine is paid and they are released.
Restrictions on Prisoner Visitation
Since Palestinian prisoners are transferred out of the OPT into Israel, the right to family visits is severely restricted. The ICRC family visitation programme has also been subject to increasingly restrictive conditions. At the beginning of the Intifada in October 2000, the programme was cancelled indefinitely. It was resumed in 2001, but only sporadically. The Israeli authorities allowed family visitation on 239 days during 2001.
From April 2001, new restrictions were introduced, limiting the number of visitors to five (three adults and 2 children) from the immediate family of the prisoners.
International humanitarian law, as well as other international legal standards on the rights of detainees in all circumstances, ensures the right of prisoners to be visited by their families. Article 116 of the IV Geneva Convention states that
Every internee shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible.
Preventing family visits has obvious negative impacts on the psychological condition of detainees. In addition, the restrictions on visits, including from lawyers, also deprives prisoners of receiving basic provisions, such as food and clothing, to cover the sharp shortage of basic provisions provided by the Israeli prison authorities.
Long Term Palestinian Prisoners
In addition to the recent mass arrests and detentions, approximately 3000 Palestinian and Arab long term prisoners are still detained in Israeli jails. The daily conditions of such prisoners are consistently poor, including over-crowding, lack of religious and educational facilities, insufficient daily exercise, poor lighting, restrictions on internal movement, restricted access and communications with family and lawyer, exposure to extremes of temperature, inadequate standards of hygiene, and humiliating regular checking.
The continued detention of many of these prisoners is not only in violation of international human rights and humanitarian law, but also in violation of agreements signed between Israel and the PLO. All prisoners who were detained or sentenced for resisting Israeli occupation prior to the signing of the Declaration of Principles (DOP) in Oslo in 1993, had to be released. However, the agreement was not fully implemented and approximately 400 such prisoners remain in detention.
Administrative detention orders are issued by the Israeli District Military Commander in Palestinian-controlled areas in the Gaza Strip and the West Bank. They allow Israeli forces to place Palestinians in detention for indefinitely renewable periods of six months without charge or trial. Administrative detention as implemented by the Israeli authorities is in contravention of basic international human rights standards as it does not follow correct judicial procedures; the detainee is generally denied the right to a fair trial, knowledge of the charges against him and the right to an appropriate defence.
Israeli occupation forces have used administrative detention against thousands of Palestinians from the OPT since 1967, but the Intifada has seen a huge increase in the numbers of Palestinians detained in administrative detention. Reports estimate between 500 and 1700 Palestinians are currently being held in administrative detention in Israel.
In November 2001, the UN Committee Against Torture repeated again its concerns regarding the continued application of administrative detention measures which did not comply with international standards.
Inadequate Medical Care
In April 2001, approximately 250 out of the total number of long term Palestinian prisoners suffered from various illnesses and many were in desperate need of frequently postponed surgeries. The medical situation in Israeli jails deteriorated and patients, especially those arrested during Al Aqsa Intifada, face increasing neglect of medical care. Jails also lack sufficient medical personnel, especially physicians. Inadequate detention facilities often exacerbate existing health problems; the Israeli jail authority often neglects the dietary needs of prisoners. Such omissions violate Article 91 of the IV Geneva Convention, which states that
Every place of internment shall have an adequate infirmary, under the direction of a qualified doctor, where internees may have the attention they require, as well as an appropriate diet.
They are also ensured in Rules 22-26 under the heading of Medical Service of the UN Standard Minimum Rules for the Treatment of Prisoners.
As discussed previously, during the incursion into Areas A in the West Bank, and the Gaza Strip to a lesser extent, the Israeli authorities detained thousands of Palestinian civilians. Although many of these were subsequently released, approximately one thousand are believed to remain in custody, either in prisons and detention camps in the OPT, such as the military bases of Ofer (near Bitunia), Etzion (near Hebron) and Hawara (near Nablus), or in facilities inside Israel.
The nature of the arrests during the recent and ongoing military offensive in the OPT is arbitrary and conducted on a massive scale, particularly in the West Bank. In facilitating these arrest campaigns, the Israeli authorities introduced new regulations and practices, including Military Order no. 1500, which grants army officers powers to detain Palestinians for 18 days without charge, without access to a lawyer and without bringing them before a judge. The Israeli government has claimed that such measures are necessary to fight the “terrorist infrastructure”.
According to testimonies of those who have been recently released, those who have been detained in the context of the recent military offensive have been subjected to various forms of cruel, inhuman and degrading treatment, including verbal and physical abuse, being forced to stand naked outdoors in the rain with their hands and feet bound. Detainees also reported being denied access to adequate food and water, denied permission to use the bathroom and denied blankets. Some detainees have been subjected to periods of solitary confinement. Human rights organizations have received numerous reports of torture, including the deliberate breaking of detainees’ toes.
The Reopening of “Ansar III”
The Ketziot prison camp in the Negev desert, popularly known as “Ansar III”, was opened on March 1988 to absorb increasing numbers of Palestinians arrested during the first Intifada. At its peak, it was the largest prison in Israel, holding approximately 7.000 Palestinians, including 3.000 in administrative detention. At one time or another during its six years of operation, approximately 170.000 Palestinians were detained at the facility. During its operations, Ansar III became known for the brutality of the regime, and the harshness of the detention conditions. Reports of torture and ill treatment were common. In a number of cases, soldiers from the watchtowers used live ammunition, killing and wounding a number of prisoners (i.e., the case of Asad Jaber Shawa from Gaza City, shot and killed on 16 August 1988).
In April 2002, Israeli authorities reopened Ansar III. This reopening clearly indicates that the mass arrest campaigns witnessed in recent months will continue. Its reopening has also raised grave concerns among human rights groups that Palestinian prisoners detained there may be subject to torture and other forms of ill-treatment. During the first few days of its reopening, Ansar III was due to receive approximately 70 Palestinians who were being held in administrative detention in Megiddo prison in Israel. A further 281 Palestinians placed in administrative detention during Israeli military offensive in the West Bank have since been transferred there.
The prison camp is administered by the Israeli army, rather than the civil penal system. It consists of tents open on all four sides, surrounded by barbed wire and watchtowers. Prisoners have little or no protection from the harsh weather conditions of the Negev desert - including temperatures ranging from 54 degrees during the day to 0 degrees at night - from insects, scorpions or reptiles.. Hygiene and sanitary conditions at the facility fail to meet the minimum international standards of conditions of detention, including those specified in Articles 76, 85 of the IV Geneva Convention. For years, Israeli authorities denied detainees in Ansar III the right to receive family visits. Palestinian lawyers seeking to visit their clients were regularly subject to degrading treatment and even beatings.
The Israeli General Security Services (GSS) has for many years systematically used various torture methods against Palestinian detainees. Methods used have included, shabeh (shackling to a small chair and violent shaking), sleep deprivation, loud music, beatings, shaking, threats of physical or sexual abuse and insults, excessive binding of hands and feet so as to cause inflammation, prolonged exposure to bright light causing burns to the face, severe pressure on the neck, and use of mechanisms to cause swelling of the eye, exposure to extreme temperatures. These methods are usually applied in combinations.
Torture was first legalised in 1987 by the Landau Commission, and then superficially outlawed by a ruling of the Supreme Court of Justice in 1999. However, this ruling did not constitute a definite legal prohibition on the use of physical force, particularly in “special circumstances”. The court ruled on the authority of the GSS to use those methods under Israeli law, rather than on the legality of the methods themselves. The Court ruling also gave tacit approval to the use of the defence of “necessity” for those members of the security services who may be prosecuted for acts of torture.
As mentioned above, in recent months, human rights organizations have received increasing reports of torture and ill treatment of Palestinian detainees.
The refusal of the Israeli authorities to recognize Palestinian lawyers from the OPT, the denial of access for Palestinian lawyers to Israeli judicial and detention facilities, and the resulting inadequate, or non-existent alternatives, including the problems often presented by the use of Israeli lawyers, has effectively ensured that a large majority of Palestinian prisoner have been denied the right to adequate and effective legal counsel. This violation itself necessarily results in further violations of detainees' rights through the inability to challenge a number of issues pertaining to their detention including, the lawfulness of their detention, torture and ill treatment, poor conditions of detention, denial of access to family, inadequate food and other provisions, inadequate medical care and other issues. This situation has indeed prevailed for a number of years but the recent massive escalation in the Israeli military offensive against the Palestinian civilian population has highlighted both the realities of this situation for Palestinian prisoners and the increasingly urgent need to challenge the denial of access for Palestinian lawyers from the OPT.