We, the undersigned lawyers, legal organizations, law students and legal workers, express our solidarity with Palestinian lawyers currently boycotting Israeli military courts. This boycott was launched on April 18 in response to Israeli authorities’ denial of legal visits to Palestinian prisoners participating in a hunger strike launched on April 17 and involving approximately 1,500 detainees. (1) In addition, we declare our support and solidarity for the demands of the Palestinian hunger strikers (2) and urge their immediate implementation.
Palestinian lawyers have taken the step of boycotting Israeli military court proceedings after being denied access to clients participating in the hunger strike detained at multiple Israeli prisons and detention centers, including Marwan Barghouthi, a prominent Palestinian political leader and spokesperson of hunger-striking prisoners affiliated with the Palestinian political faction, Fateh. (3) Barghouthi, whose essay on the hunger strike was published on April 16 in the New York Times, (4) has reportedly been transferred to two different prisons and thrown into solitary confinement in retaliation for the Times piece. (5)
While Israeli military law gives military courts the authority to try any person located inside the occupied Palestinian territory (OPT) as long as they are 12 years or older, in practice, the West Bank is governed by two separate systems of law. The military courts only adjudicate cases against the Palestinian population. Israeli settlers who commit offenses in the West Bank are subject to Israel’s civilian criminal justice system.
Israel's military courts have a conviction rate of 99 percent against Palestinian "security" defendants in military trials. (6) Since Israeli forces occupied the West Bank, including East Jerusalem, and the Gaza Strip in 1967, over 1,700 military orders have been issued, regulating all aspects of Palestinian life in the OPT.
The primary military order relevant to the arrest and detention of Palestinians, including children, is Military Order 1651 or “Order regarding Security Provisions.” This order touches on a range of issues, including the authority to arrest and imprison Palestinians for “security offenses,” such as throwing stones, assault, and harming a soldier. Other offenses include membership in a banned organization, which implicates nearly all Palestinian political parties, and participating in demonstrations. (7)
Every year, nearly 700 Palestinian children are arrested, detained and prosecuted in the military court system. (8) Most of these child prisoners are arrested in violent late-night raids, interrogated without a lawyer and denied access to their parents. The United Nations Convention on the Rights of the Child outlines minimum required protections for children. However, Palestinian children are "systematically subject to degrading treatment, and often to acts of torture." (9) Children most commonly face the charge of throwing stones, which carries maximum sentences of 10 or 20 years, depending on the circumstances. (10)
Israeli military courts fail to live up to international fair trial standards. (11) Israeli military law and the Israeli military court system deny essential fair trial guarantees which are recognized internationally and are necessary to ensure that individuals are protected from unlawful or arbitrary deprivation of their human rights and freedoms.
International human rights law and international humanitarian law, which apply to the OPT, (12) restrict the jurisdiction of the Israeli military courts and guarantee basic safeguards for a fair trial. Accordingly, individuals should be presumed innocent, they should not be compelled to testify against themselves or confess guilt, and they should be informed promptly and in detail of the charges against them in a language that they understand. (13) However, Israeli military court judges seldom exclude confessions obtained by coercion or torture, even those drafted in Hebrew, a language that most Palestinians do not understand. Within the Israeli military court structure, judges and prosecutors are active members of the Israeli military. They are subject to military discipline and dependent on superiors for promotion. They are fundamentally part of the system enforcing the occupation. Under international human rights law, a fair trial can only be guaranteed by an independent and impartial system.
We express our full support for our Palestinian colleagues in their boycott of the Israeli military court system and urge Israeli authorities to allow lawyers immediate access to all clients held in Israeli prisons and detention centers, particularly those engaged in a hunger strike.
Further, we express our support for the hunger strikers' demands, and urge their implementation. One of the primary demands of the hunger strikers is an end to the policy of administrative detention. Administrative detention must never be used as a substitute for criminal prosecution where there is insufficient evidence to obtain a conviction. There are currently approximately 530 Palestinians held in administrative detention, imprisoned without charge or trial for indefinitely-renewable periods of up to six months, on the basis of secret evidence. (14) Israel's systematic use of administrative detention as a replacement for actual trials violates international human rights and humanitarian law.
Another key demand of the hunger strikers is an end to the use of solitary confinement in Israeli prisons. The use of long-term solitary confinement is widely understood to be a form of cruel, inhuman or degrading treatment that may amount to torture. (15) In the Palestinian context, solitary confinement orders are addressed by the same military system responsible for the occupation of Palestinian land. In 2016, Israeli authorities held increasing numbers of Palestinian children in solitary confinement for longer periods, solely for interrogation purposes. (16)
Another central component of the hunger strike addresses the denial of family visits to Palestinian prisoners, as a result of, among other things, the unlawful transfer of prisoners to prisons located inside Israel. Palestinians, including children, are held at prisons and detention centers inside Israel for interrogation purposes, pre-trial detention, or prior to appearing in the military courts. Transfer of Palestinian detainees to prisons and detention facilities of any kind inside Israel, even for brief periods, constitutes an unlawful transfer in violation of Article 76 of the Fourth Geneva Convention. (17) Under international law, Palestinian prisoners must be allowed to receive visitors at regular intervals and as frequently as possible. (18)
However, all but one of the 17 prisons holding Palestinians are located inside Israel, making it extremely difficult for family members to get permission to visit . At least 1,000 Palestinian prisoners are currently barred from receiving family visits on "security grounds." Beyond this, many more family visits are denied to prisoners by Israel’s frequent refusal to issue to family members the special permits required to be able to visit their loved ones in prison. Amnesty International recently documented the heavy restrictions and frequent denials of family visits for Palestinian prisoners. (19)
In addition, hunger-striking prisoners demand improved medical treatment and access to specialized care; increasing the length of family visits from 45 to 90 minutes; improved access to media and gifts, including books, clothing and food from family members; restoring educational access to distance learning; and the installation of public pay telephones for family calls in each prison wing.
The ongoing, large-scale imprisonment of Palestinians, the unjust Israeli military court system that Palestinians are subject to, and the myriad of rights violations taking place behind prison walls requires our response as lawyers, legal organizations, law students and legal workers. We urge Israeli authorities to immediately implement the hunger strikers' demands; respect and ensure all internationally recognized fair trials rights and protections; and end widespread and systematic ill-treatment of Palestinian child prisoners. We also call for the dismantlement of Israel’s military court system, which embodies and perpetuates the systemic discrimination and rights denials inherent in Israel’s prolonged occupation of Palestinian land and lives.
National Lawyers Guild
1. Jack Khoury, Ha’aretz, April 19, 2017. “Palestinian Hunger-striking Prisoners' Lawyers Call Boycott of All Israeli Court Sessions.” Available at: http://www.haaretz.com/middle-east-news/palestinians/.premium-1.784148 2. Samidoun Palestinian Prisoner Solidarity Network, April 17, 2017. “Demands of the Strikers.” Available at: http://samidoun.net/2017/04/1500-palestinian-prisoners-launch-largest-collective-hunger-strike-in-years-take-action-in-support/#demands 3. Ma’an News, April 19, 2017. “Palestinian women join hunger strike, lawyers declare boycott of Israeli courts.” Available at: https://www.maannews.com/Content.aspx?id=776498 4. Marwan Barghouthi, New York Times, April 16, 2017. “Why We Are on Hunger Strike in Israel’s Prisons.” Available at: https://www.nytimes.com/2017/04/16/opinion/palestinian-hunger-strike-prisoners-call-for-justice.html 5. Ma’an News, April 19, 2017. “Activist group cries foul over Israeli outrage at Marwan Barghouthi op-ed.” Available at: https://www.maannews.com/Content.aspx?id=7765046. Chaim Levinson, Ha’aretz, November 29, 2011. “Nearly 100% of All Military Court Cases in West Bank End in Conviction, Haaretz Learns.” Available at: http://www.haaretz.com/nearly-100-of-all-military-court-cases-in-west-bank-end-in-conviction-haaretz-learns-1.398369. Some sources cite the US State Department figure of an approximately 90 percent conviction rate. See: https://www.state.gov/j/drl/rls/hrrpt/2015/nea/252927.htm In either case, the conviction rate reflects the lack of a fair trial process for Palestinians under occupation.7. Lisa Hajjar, “Courting Conflict: The Israeli Military Court System in the West Bank and Gaza.” University of California Press, 2005, p. 59. 8. Defence for Children International - Palestine. “Issues - Military Detention.” Available at: http://www.dci-palestine.org/issues_military_detention 9. United Nations Committee on the Rights of the Child, “Concluding observations on the second to fourth periodic reports of Israel, adopted by the Committee at its sixty-third session (27 May – 14 June 2013).” Available at: http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-ISR-CO-2-4.pdf 10. Defense for Children International - Palestine, No Way to Treat a Child: Palestinian Children in the Israeli Military Detention System, 2 (2016), http://bit.ly/29W41mB. 11. Addameer Prisoner Support and Human Rights Association, 2012. “Eyes on Israeli Military Court: A collection of impressions.” Available at: http://www.addameer.org/sites/default/files/publications/eyes_on_israeli_military_court-_a_collection_of_impressions.pdf 12. International Court of Justice. 9 July 2004. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”.13. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 14, U.N. Doc. A/6316 (1966), http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf; UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, ¶ 22, UN Doc. CCPR/C/GC/32 (Aug. 23, 2007), http://www.un.org/en/ga/search/view_doc.asp?symbol=CCPR/C/GC/32. 14. Addameer Prisoner Support and Human Rights Association, “Administrative Detention. December 2015. Available at: http://www.addameer.org/israeli_military_judicial_system/administrative_detention 15. UN News Centre, “Solitary confinement should be banned in most cases, UN expert says,” October 18, 2011. Available at: http://www.un.org/apps/news/story.asp?NewsID=40097#.WPjiBtKGNPY 16. Defense for Children International - Palestine, Palestinian children held in solitary confinement for longer periods, April 17, 2017. http://www.dci-palestine.org/palestinian_children_held_in_solitary_confinement_for_longer_periods 17. Defense for Children International - Palestine, Palestinian children held in solitary confinement for longer periods, April 17, 2017. http://www.dci-palestine.org/palestinian_children_held_in_solitary_confinement_for_longer_periods 18. Addameer Prisoner Support and Human Rights Association, “Family Visits.” http://www.addameer.org/publications/families-family-visits-019. Amnesty International, “Israel must end ‘unlawful and cruel’ practices towards Palestinian prisoners.” April 13, 2017. Available at: https://www.amnesty.org/en/press-releases/2017/04/israel-must-end-unlawful-and-cruel-policies-towards-palestinian-prisoners/