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Since October 7, the occupation authorities have arrested more than 2,400 people, six of whom were martyred in mysterious circumstances. The number of detainees reached more than 7,000 Palestinian prisoners, including 62 women and 200 children, and more than 2,070 administrative detainees. Palestinian prisoners and detainees are subjected to extremely harsh conditions of detention, as they are deprived of the most basic rights granted to them by the Geneva Conventions of 1949.
The Israeli extreme right-wing parties, which make up the government coalition, are racing to take retaliatory measures against the Palestinians, as part of political outbidding among themselves, whether against civilians in the Gaza Strip or storming cities and villages in the West Bank and killing young men in cold blood. These measures include harsh treatment against prisoners, or racist bills that allow them to be executed or undermine their dignity. What is the legal position of Palestinian prisoners and detainees? Why now the draft law on executing prisoners? Where do these projects stand in the international regulating laws?
The occupying state refuses to treat Palestinian fighters under the Third Geneva Convention, considering that the status of prisoners of war only applies to members of the armed forces and members of organized resistance movements of one of the parties to the conflict. Since Palestinian resistance fighters do not belong to any state, they are not eligible for prisoner-of-war status
Why the death penalty law for Palestinian prisoners?
On Wednesday, March 1, 2023, the Knesset General Assembly approved, in preliminary reading, the Penal Code proposal that stipulates the death penalty for Palestinian prisoners. The law proposal was drafted by Knesset member Limor Son Har-Melech of the “Religious Zionism” party led by Ben Gvir, The proposal will be passed to the Knesset in order to determine the identity of the committee that will examine it and prepare it for the first reading. The project was re-introduced again after the Battle of Al-Aqsa Flood. In order to approve it in the first reading, and to expedite its approval in the second and third readings, so that it becomes effective immediately.
The draft law is considered one of the provisions of the agreement to form a government coalition that was concluded between the head of the Likud Party, Benjamin Netanyahu, and the head of the Jewish Power Party, Itamar Ben Gvir, in late 2022.
The proposed law stipulates the following:
“A person who intentionally or through indifference causes the death of an Israeli citizen, and when the act occurs out of racism or hostility toward the Jewish public, and with the aim of harming the State of Israel, its security, and the advancement of the Jewish people, shall be sentenced to death.”
This proposal comes in light of the state of political and military confusion experienced by the occupying state, represented by fleeing forward and implementing retaliatory measures against the Palestinians.
It is unlikely that the proposed law, if approved in the Knesset, would constitute a deterrent to the Palestinians. It is a law that is described in Israeli political circles as populist, and requires in-depth discussions in order for it to be suitable for discussion in the Knesset. It is a miserable attempt to improve the image of the extreme right-wing parties, including the image of Ben Gvir’s party.
Legal Center for Palestinian Prisoners and Detainees
Israel is practicing a widespread process of dilution against Palestinian prisoners and detainees. It does not recognize their legal status, nor does it recognize the rights provided to them by international humanitarian law, especially the Third and Fourth Geneva Conventions of 1949. Even when it applies its internal laws or decisions issued by its security services (the Shin Bet) or the National Security Service, Prisons practice blatant discrimination between their detainees – regardless of their legal status according to the Israeli assessment – and Israeli prisoners.
After Israel occupied the West Bank, Gaza Strip, and East Jerusalem in 1967, the military commander of the Gaza Strip and North Sinai region issued Military Order No. (107), and in the same year, the military commander of the West Bank issued Military Order No. (144), which stipulated: “ The provisions of the Fourth Geneva Convention do not enjoy superiority or superiority over Israeli law and the instructions of the military command, and the reference to the Fourth Geneva Convention contained in Article 35 of Military Order No. (3) came by mistake.” Note that the occupying state recognized the application of the Geneva Conventions to the occupied Palestinian territories before these military orders.
The occupying state refuses to treat Palestinian fighters under the Third Geneva Convention, considering that the status of prisoners of war only applies to members of the armed forces and members of organized resistance movements of one of the parties to the conflict. Since Palestinian resistance fighters do not belong to any state, they are not eligible for prisoner-of-war status.
In an attempt to delegitimize the struggle of the Palestinian people, the occupying state does not recognize the owners of the Palestinian resistance, as they are part of the national liberation movements. Because that will give legitimacy to their struggle. Instead, the occupying state classifies them as prisoners for security reasons and terrorists without rights. After its withdrawal from the Gaza Strip in 2005, it also began to classify some of the detainees in the Strip as “illegal combatants,” just as the United States did with the Guantanamo prison detainees, given that its occupation of the Gaza Strip had ended and they did not have “rights,” as is the case with Prisoners of the West Bank or occupied Jerusalem.
Given that the status of prisoner of war applies only to a small number of Palestinian detainees, the vast majority of them are civilians who enjoy protection under the Fourth Geneva Convention, whether those who took up arms in the face of the occupation or those who participated in successive Palestinian uprisings.
Administrative detention is carried out without trial based on an order issued by the commander of the region, and on the basis of confidential evidence and data that the detainee himself does not have access to.
Prisoners in Israeli prisons are divided into two groups:
- Criminals
- And the security
Administrative detainees and illegal combatants fall within the category of security prisoners:
Administrative detainees
They are people who were deprived of their freedom based on an order from security rather than judicial authorities, without criminal or security charges being brought against them. This arbitrary detention is based on international humanitarian law, specifically the Fourth Geneva Convention. Because the talk is about what appears to be a preventive step, there is no specific time for the period of detention. Administrative detention is carried out without trial based on an order issued by the commander of the region, and based on confidential evidence and data that the detainee himself does not have access to.
Unlawful combatants according to prison service regulations
They are persons detained in prison on the basis of an arrest warrant signed by the Chief of Staff. They do not deserve the status of prisoner of war. Dozens of Palestinians from the Gaza Strip were arrested under this law, especially during the Israeli aggression in 2008, or those who were arrested after October 7.
The Israeli occupation authorities use the administrative detention procedure extensively and routinely, such that they have detained, and are still detaining, over the years, thousands of Palestinians for long periods without enabling them to defend themselves against the secret allegations directed against them.
Racist laws against prisoners
During the last decade, the occupation authorities issued a number of racist laws against prisoners. Including the Law on Deduction of Salary Allocations for Prisoners and Martyrs (2018). This law stipulates that the value of the amounts paid by the Palestinian Authority to prisoners and their families be deducted from the tax revenues collected by the occupation authorities, and frozen in a special fund, provided that the Mini Ministerial Council for Security and Political Affairs is given the right to return all frozen funds to the Palestinian Authority if the Authority does not Transferring allocations to the families of Palestinian prisoners, martyrs and wounded.
As well as the law exempting intelligence from documenting investigations (2015). This law exempts the Israeli intelligence service and the Israeli police from documenting investigations with audio and video, which could prevent the practice of torture against detainees, which is still practiced in Israeli investigation rooms.
As well as the Force-Feeding of Prisoners on Hunger Strike Law (2015). This law is considered one of the most dangerous laws that threaten the lives of prisoners on hunger strike.
Law on Prosecution of Children Under 14 Years (2015)
It is a law that allows the trial and imprisonment of children under the age of 14, and this applies to Palestinian children who are subject to the “Israeli Civil Juvenile Law,” such as the children of Jerusalem. The law stipulates that the court can try children from the age of 12; But the actual prison sentence begins after they reach the age of 14; So that the age of criminal responsibility becomes 12 years; A child may be arrested and investigated; After his conviction, he is sent to a closed reformatory, where he remains until he turns 14 years old.
Anti-Terrorism Law (2016)
It is a law that provides new tools for the Israeli authorities, in addition to enshrining some of the brutal emergency laws in force since the era of the British Mandate and the temporary instructions issued therefrom, which aim to suppress the struggle of the Palestinians inside (1948) and prosecute their activities in support of the Palestinians in the West Bank and Gaza Strip. This law imposes a 25-year prison sentence on the head of a Palestinian organization. 15 years for anyone who holds an administrative or leadership position in the organization. It also stipulates that the parole committee does not submit a recommendation to the President of the State to reduce the sentence of someone sentenced to life imprisonment, except after 15 years have passed since his arrest.
International humanitarian law does not allow harm to the health and safety of prisoners
International humanitarian law – which has peremptory provisions even for states that have not ratified it – calls for the humane and decent treatment of detained prisoners. It is prohibited to treat prisoners in a humiliating or degrading manner, and any action that could lead to serious harm to the health or safety of detained prisoners is not permitted. According to Article 13 of the Third Geneva Convention for the Protection of Prisoners of 1949, prisoners of war must be treated humanely at all times. It is prohibited for the Detaining Power to commit any unlawful act or omission that causes the death of a prisoner in its custody, and is considered a grave violation of this Convention.
Does Israel implement the death penalty?
Although Israel participated in the negotiations that led to the conclusion of agreements against the death penalty, it did not ratify the protocols attached to them. These conventions include the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The occupation’s failure to ratify the protocols is due to religious reasons, as Jewish religious sects consider the death penalty – legal or political – linked to avoiding international pressure.
The occupation authorities took some steps to reduce the use of the death penalty. In 1996, Israel abolished the death penalty for ordinary crimes, and the death penalty became limited to crimes committed in wartime or in cases of extreme necessity. To prevent a serious crime from occurring. In 2000, Israel also passed a law requiring the approval of the Prime Minister, the Minister of Defense, and the Minister of Justice to carry out a death sentence. Since the execution of the death sentence against Adolf Eichmann, who is accused of crimes against humanity, in 1962, no death sentence has been carried out since that time.
Today, after one of the Knesset committees failed to discuss the draft law on executing prisoners, for security and political reasons, it is extremely difficult to approve it at a later time, because Israel may resort to implementing the death penalty against Palestinian prisoners accused of killing Israeli soldiers or settlers without a law and in secret. Many arguments are presented as to the cause of their death, and nothing is more evident than the martyrdom of 6 Palestinians in mysterious circumstances in occupation prisons. Implementing the death penalty – formally and publicly – may inflame tensions and spark a massive uprising in the West Bank and occupied Jerusalem.
