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Holding Palestinians in incarceration facilities inside Israel: HCJ petition 2690/09
2690/09 | documents: 2  |  Updates: 2 For years, Israel has been holding Palestinian detainees, administrative detainees and prisoners in incarceration and detention facilities inside Israel. This practice contravenes the express provisions of the Fourth Geneva Convention concerning the rights of protected persons in occupied territory.

On March 25, 2009, HaMoked and other human rights organizations petitioned the High Court of Justice (HCJ) demanding a reevaluation of this policy. The petition was filed following a study by the organization "Yesh Din", which revealed that incarceration of Palestinians inside Israel entails a severe infringement of various rights, among them the rights to legal representation and due process. A report of the findings. entitled “Backyard Proceedings”, was published in December 2007.Granted, the policy had been partly reviewed and sanctioned by the HCJ in the Sajdiya case (HCJ 253/88), but this was over two decades earlier, when the effective boundaries between Israel and the Occupied Palestinian Territories (OPT) were blurred, and travel between the West Bank, Gaza and Israel was relatively unrestricted. The petition argued that in the years following the establishment of the Sajdiya rule by the court, there has been a substantial change in the status of the Fourth Geneva Convention and it has come to be accepted as part of customary law, and is therefore binding on Israel, regardless of Israel's objection.

The policy of holding Palestinians in incarceration facilities inside Israel is being implemented in a reality where closures, encirclements, checkpoints, roadblocks and permit regimes variously restrict the travel of Palestinians both inside the OPT and between the OPT and Israel. In such a reality, the right of imprisoned Palestinians to family visits is severely harmed. Had they been held in facilities inside the OPT, the only constraint governing the schedule and frequency of family visits would have been the specific internal procedure of the relevant incarceration facility. Whereas, under the current situation, visits are subject to  Israeli criteria, because, inter alia, they require an entry permit to Israel, and otherwise, they must be arranged according to the shuttle schedule of the International Committee of the Red Cross. Moreover, if the visitor-applicant is listed as "banned from entry" into Israel by the Israel Security Agency – as many are – he has to wait a long time for a reply and any affirmative reply allows him only one visit. The situation is by much worse for families from Gaza: ever since September 2007, Israel has been banning them from visiting their relatives who are imprisoned within its borders.

In response to the petition, the state argued, inter alia, that the passage of time since the Sajdiya ruling, did "not detracted from the validity of the rule", and additionally, that practical, logistic-bureaucratic considerations preclude a deviation from the rule, given that the rights of the protected population could be harmed, inter alia, by the subsequent need to confiscate Palestinian lands for the construction of new detention facilities, those previously used in the OPT no longer being under Israeli control. The court fully accepted this argument, and in its ruling, handed down on March, 28, 2010, the court dismissed the petition, and determined that while military operations in the OPT should be examined according to the provisions of international law and the Geneva Conventions in particular, whenever an express Israeli statute conflicts with the rules of international law – be it even customary law – then Israeli law prevails. The court thus found no cause to alter Israel's longstanding policy.


HCJ 2690/09 - Yesh Din et al. v. IDF Commander in the West Bank et al. Judgment
Judgment / Supreme Court  |  2690/09  |  28.3.2010
Judgment in a petition by HaMoked, Yesh Din and ACRI against the incarceration of OPT detainees and prisoners inside Israel and the holding of remand proceedings there. The Court rejects the petition, finding no cause to depart from the prevailing case law, whereby, if an Israeli practice contradicts the rules of international humanitarian law but conforms to primary Israeli legislation, the la...
HCJ 2690/09 - Yesh Din et al. v. Commander of the IDF Forces in the West Bank et al. Petition for Order Nisi
Petition to HCJ  |  2690/09  |  25.3.2009
Petition by HaMoked, Yesh Din and ACRI against the holding of detainees and prisoners from the Occupied Territories within Israeli territory and the practice of extending detention orders in Israeli territory. The petitioners claim that the current policy is a blatant violation of the Fourth Geneva Convention, which prohibits an occupied power from transferring and holding prisoners and detaine...
Updates
26.4.2010
Dismissal of joint petition by HaMoked and additional organizations against incarceration of Palestinians in facilities within Israeli territory: The court found no grounds to change the rules it established more than two decades ago, under entirely different conditions
12.5.2009
HaMoked and other human rights organizations petition the HCJ against the continued holding of Palestinian detainees and prisoners from the Occupied Territories in facilities inside Israel, and the policy of holding arrest extension proceedings in military courts which operate outside the Territories: HaMoked's data indicates that 7,119 prisoners and detainees from the Territories are currently...
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