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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 being held in incarceration facilities inside Israel

On 25 March 2009, HaMoked: Center for the Defence of the Individual, Yesh Din and the Association for Civil Rights in Israel submitted a petition against a longstanding  Israeli policy of holding Palestinian detainees and prisoners from the Territories in incarceration facilities outside the occupied territory, i.e. in Israel. The petition also attacks the policy of conducting hearings regarding arrest extension orders for such prisoners and detainees in military courts which operate in Israel. The petitioners claim that this policy must be rendered null and void, as it constitutes a blatant violation of international humanitarian law, and infringes the basic rights of all prisoners and detainees incarcerated in Israel, such as the right to family ties and due process.

The Fourth Geneva Convention relative to the Protection of Civilians during Times of War prohibits the transfer of protected civilians to the territory of the occupying power, as well as conducting legal proceedings against such persons outside of the occupied territory. However, data presented to the Court by the organizations indicate that, at the time the petition was submitted, 7119 Palestinians were being held outside the Territories, in contravention of the Convention. The policy of incarcerating Palestinians in Israel and conducting proceeding against them in Israeli courts is particularly prejudicial to the prisoners' right to effective representation and family visitations.

According to the information presented to the Court by the petitioners, the sweeping prohibition on the entry of Palestinians from the Territories to Israel, combined with the policy of conducting legal proceedings and holding prisoners and detainees in Israel, effectively prevents attorneys from the Territories from meeting with clients incarcerated in Israel prior to the court hearing, and thus, the right to proper counsel is sabotaged. Needless to say, under the current state of affairs, prisoners and their counsel have no opportunity to prepare and formulate a proper defense to present to the court.

Israel's policy also harms the right of incarcerated persons to meet with their loved ones from the Territories. Furthermore, family members cannot attend the proceedings conducted against their loved ones. Thus, in addition to the blatant violation of the right to family visitations, Israel also violates the principle of open court, the purpose of which is to expose the proceedings to public scrutiny: in many cases, hearings are conducted without the presence of attorneys and family members from the Territories.

The petitioners clarify that although this policy was approved by the Court in the 80's, in the framework of the Sajadia case, indeed, the status of international humanitarian law has changed since that time and so has the position of Israeli law: today, the Geneva Conventions are considered customary law, which is binding on Israel. Furthermore, Israel has instituted Basic Law: Human Dignity and Liberty, which establishes, inter alia, the protection of the rights of all prisoners and detainees held in Israel. In addition to these legal changes, there have also been substantial changes in policy concerning the entry of Palestinians from the Territories to Israel, and currently, their entry is sweepingly prohibited. Therefore, the petitioners demand that prisoners and detainees – as well as legal proceedings in their regard – be transferred to the occupied territory, where they belong.

mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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