In the judgment, rendered March 28, 2010, the c
ourt rejected the organizations' demand to re-examine the policy of holding Palestinian detainees and prisoners from the Occupied Territories in incarceration facilities situated within Israeli territory.
In the petition, submitted on March 25, 2009, the petitioning organizations argued that the longstanding policy of holding Palestinian detainees as well as the court proceedings against them within the sovereign territory of Israel, is in complete contravention of three clear provisions of the Fourth Geneva Convention relative to the Protection of Civilians in Time of War (1949).
This policy was partially reviewed and sanctioned by the court in the Sajdiya case (HCJ 253/88 Sajdiya et al. v. Minister of Defense). However, the policy was set forth in an era when the physical borders between the State of Israel and the Occupied Territories were blurred such that Palestinian residents of the Occupied Territories could move freely, back and forth, between the West Bank, Gaza and Israel. Contrarily, nowadays, more than two decades later, the factual reality has completely altered into a reality of closures, encirclements, separation obstacles and permit regimes that dictate the limited movements of Palestinians between Israel and the Occupied Territories, and within the Occupied Territories. These actual conditions result in a severe infringement of the basic right of detainees to family visitations.
Had the Palestinian detainees been incarcerated in facilities within the Occupied Territories, the times and frequency of family visits would have been subject only to conditions set by the prisons’ internal procedures, whatever these are. Currently, a Palestinian living in the Occupied Territories who wishes to visit an incarcerated relative has to submit to the International Committee of Red Cross [ICRC] a request for an entry permit to Israel for the visit. Unless he is "precluded from entering Israel” (as many applicants are so labeled by the Israel Security Agency [ISA]), he will be issued a one year permit , during which time he may visit his incarcerated relative, in accordance with the ICRC schedule of shuttles from his area of residence to the facility in which his relative is held. Those labeled "precluded from entering Israel”, have to wait for many months until they receive the ISA's reply – an affirmative reply merely allows a single visit. All in all, only first degree relatives are entitled visits; siblings only once a year.
The position of relatives living in Gaza is far worse; Since September 2007, Israel has prohibited all families living in Gaza from visiting relatives incarcerated within Israeli territory.
In response to the petition, the state argues, inter alia, that the time elapsed since the judgment in the Sajdiya case was issued, "has not detracted from the validity of the rule"; furthermore, due to practical considerations, i.e. logistic-bureaucratic ones, a deviation from the policy is disadvantageous, as it may compromise the prisoners' rights, in view, inter alia, of the need that would arise to confiscate Palestinian lands for the construction of detention facilities, as the facilities previously operating within the Occupied Territories, are no longer under Israeli control. The court fully accepted this argument.
The organizations also argued that parallel to the changes in factual reality, the approach to international humanitarian law has also undergone changes, and the provisions of the Geneva Convention are now accepted as constituting part of customary law, and as such, have binding status. The court accepted the claim that military operations should be reviewed in accordance to the provisions of the convention, nonetheless, whenever a clear stipulation of internal Israeli contrasts with the rules of international law, customary law notwithstanding, Israeli law prevails.
The infringement of family visits to detainees is one of numerous infringements of detainees' rights, including due process, in the framework of their incarceration within Israeli territory. Nonetheless, the court opted to note in the judgment, that in of itself, the holding of Palestinian detainees within Israel is beneficial to them, due to the "considerable improvement" of incarceration conditions in Israeli facilities.
