מצב זכויות האדם בשטחים 2011

Human Rights in the Occupied Territories 2011
03. Without Due Process
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    Video: No minor matter

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    Detention and arrest of Palestinians

    Photo: Zvi Koren

    Palestinian detainees and prisoners are generally held in facilities of the Israel Prison Service. Except for Ofer Prison, near Ramallah, all these facilities are located inside Israel. As of 31 December 2011, 4,281 Palestinians were being held in IPS facilities. This includes 3,196 prisoners and 625 detainees who have been remanded until the end of the criminal proceedings against them.

    Palestinians held under military custody in IPS facilities, 2011

    At end of -TotalConvictedNon-administrative detaineesHeld under Illegal Combatants LawRemanded until end of trialAdministrative detainees
    January5,6424,6181813621219
    February5,5504,5401622632214
    March*5,4934,47414017645217
    April5,3834,3811242657219
    May5,3354,3211542630228
    June5,4204,4251362615242
    July5,3984,4101222621243
    August5,2044,1641242642272
    September5,2694,2351311616286
    October **4,7723,7531311609278
    November4,8033,7201691630283
    December4,2813,1961521625307

     *   As of 27 March.
     **  In October, 477 Palestinian prisoners were released as part of the Shalit-exchange deal.

    In addition, the military maintains two detention facilities inside the West Bank, at the Etzion and Huwara military bases. The detainees are generally held for a short period of time for interrogation purposes only, after which they are transferred to other detention facilities or are released. No women or children under age 16 are held in the two facilities.

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    Administrative detention: Prolonged detention without trial

    Ofer Prison. Photo: Sharon Azran, B'Tselem

    Administrative detention is detention without trial, the declared aim being to prevent the person from committing an act that is liable to endanger public safety. Unlike a criminal proceeding, administrative detainees held by Israel are not told the reason for their detention or the specific allegations against them. Although detainees are brought before a judge for purposes of approving the detention order, most of the material submitted by the prosecution is privileged. Since the detainees do no know the evidence against them, they are unable to refute it. The detainees also do not know when they will be released: although the maximum period of a detention order is six months, it can be renewed indefinitely. Administrative detention violates the right to liberty and the right to due process; the detainee is incarcerated for a prolonged period without criminal charges being filed, without a trial in which the state is required to prove the accusations, and without the court giving its ruling at the end of the trial.

    Over the years, Israel has held thousands of Palestinians in administrative detention for periods ranging from a few months to several years. The state has also held a number of Israelis, including a few settlers, for periods up to a few months. There were times over the past decade when the number of Palestinians held in administrative detention exceeded one thousand.

    Since 2008, there has been a steady drop in the number of administrative detainees: from 813 in January 2008 to 204 in December 2010. In 2011, this trend was reversed and there was an increase: 307 in December compared with 219 in January. Some 29 percent of the administrative detainees were held for a period of between six to twelve months, and 24 percent for one to two years. Seventeen were held between two and four and a half years, and one detainee was in administrative detention for over five years. In December 2011, one minor was being held in administrative detention.

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    From rare exception to standard practice

    Photo: Reuters

    Under international law, it is permissible to administratively detain a person only in exceptional cases, when the person himself poses a danger and less harmful means cannot prevent it. A detainee has the right to appeal the detention. Israel’s use of administrative detention breaches these rules, in gross violation of the detainee’s rights. Israel’s policy with respect to administrative detention makes a mockery of the protections prescribed by Israeli and international law, which are intended to ensure the right to liberty and due process, the right to be heard, and the presumption of innocence.

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    Release or prosecute

    Flyer with a picture of Khader Adnan, who protested his administrative detention with a 66-day hunger strike. The flyer was posted on a wall at Ofer Prison during protests for his release. Photo: Oren Ziv, activestills.org, 8 February 2012
    The decline in the number of Palestinians in administrative detention does not reflect a change in policy, and the military law allowing wide-scale and lengthy detentions remains in force. At the end of 2011, Israel was still holding more than 300 Palestinians in administrative detention for months and even years without their knowing when they will be released and without being able to mount a defense. Israel must release all the administrative detainees or prosecute them in accordance with due process.
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    Definitely not child's play: Palestinian minors denied protections afforded by Israeli and international law

    Soldiers detain Palestinian youth in Hebron. Photo: Manal al-J’abri, B’'Tselem, 1 January 2012

    The various authorities responsible for the detention and incarceration of Palestinians – the military, the police and the Prison Service – could not provide the total number of minors detained and incarcerated each year on suspicion of security offenses. According to IPS figures, in 2011, some two hundred Palestinian minors were in the custody of security forces at any given time. The number of minors in prison has been dropping steadily. By way of comparison, in 2008, an average of about 320 minors were incarcerated each month.

    These figures do not include minors detained for questioning and released without being prosecuted. The authorities could not provide figures for such detentions. According to the military court’s figures, in 2010, 650 indictments were filed against minors, 40 percent of them for stone-throwing. Other minors were accused, among other things, of throwing petrol bombs and of belonging to an unlawful organization. According to figures of the IDF Spokesperson, in 2010, eight minors were convicted of serious crimes, among them the attempted assault of a soldier. In 2011, one minor was convicted of five counts of homicide – the killing of five members of the Fogel family from Itamar – and of other crimes arising out of the same incident. The court sentenced him to five consecutive life sentences, and an additional five years for the other offenses he committed.

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    Without protection: From arrest to indictment

    Soldiers detain Palestinian youth in Hebron. Photo: Manal al-J’abri, B’'Tselem, 1 January 2012

    Israeli law defines a minor as a person under 18 years old. This same definition has been applied to Palestinians in the West Bank only since September 2011. Prior to that, the relevant age was 16.

    Although the change is welcome, Palestinian minors still are not provided the protections granted under Israeli and international law. Detention and incarceration continue to be the only response to suspected breaches of the law – and not the last resort when dealing with juvenile offenders. Military law does not give minors the right to have a parent present during interrogation, as required by Israeli law, and often Palestinian minors are questioned without being able to consult with an attorney. In addition, the military legislation lacks proper rules governing arrests and interrogations. The military regularly takes minors from their beds in the middle of the night to detain them, even when the interrogation is not urgent. Israeli law requires that an adult detainee be brought before a judge within 24 hours, and a minor detainee under age 14 within 12 hours. By contrast, in the West Bank, both adults and minors may be held for eight days before being brought before a judge.

    Twelve is the age of criminal responsibility both in Israel and in the West Bank. Criminal proceedings may not be initiated against a minor younger than 12. Israeli statutory law grants special protections to minors; a minor under age 14 cannot be held in detention or incarceration. There are additional restrictions on indictments filed against minors under 13. These protections do not exist in the military legislation applicable to Palestinians. The only parallel restriction in the military legislation is that a minor under 14 may not be sentenced to incarceration for over six months.

    The Military Youth Court: A slight improvement

    In November 2009, Israel instituted a Military Youth Court, which operates at the Ofer Military Base. The court’s judges have been authorized to serve as youth court judges, and the hearings are held in camera. Since it was established, it has dealt with minors under age 18, even though the military legislation then in force defined minors only as persons under age 16. The Military Youth Court conducts only the principal hearings; hearings on extension of detention are held in the regular military courts, and appeals are heard by the military courts of appeals, on which youth judges do not sit.

    The Military Youth Court has attempted to shorten the length of proceedings. According to figures of the IDF Spokesperson, before the Youth Court was established, in 10 percent of the cases in which minors were detained until the end of the criminal proceedings, the proceedings took more than nine months to complete. In 2010, only 1.5 percent of cases lasted that long.

    B'Tselem found that from the beginning of 2005 to the end of June 2011, 93 percent of minors convicted of stone throwing were given a prison sentence. The Military Youth Court improved the handling of cases involving minors under 14. In the first six months of 2011, no minors under 14 were convicted of stone throwing. Also, the Military Youth Court shortened prison sentences appreciably for those minors under 14 who were convicted; in 2010, the longest sentence imposed on this age group was nine days, compared to sentences of two months that had been imposed before the Youth Court was instituted. Inside Israel, as mentioned above, minors under 14 cannot be imprisoned at all.

    For older children, the establishment of the Military Youth Court did not result in significant changes regarding the penalties imposed; from the beginning of 2005 to the end of June 2011, the median period of incarceration for minors aged 14-15 was two and a half months and four months for minors aged 16-17.

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    Chronology of a predictable confession: The arrest and interrogation of a Palestinian boy for throwing stones

    Muhammad Jawabreh, Photo: Musa Abu Hashhash, B'Tselem

    Muhammad Jawabreh, 16, an eleventh-grade student, lives with his parents and eight siblings in al-‘Arub refugee camp, near Hebron. He told B'Tselem about his arrest and interrogation.

    Around 2:00 a.m. on Thursday, 19 May 2011, a large group of soldiers came to our house. They forced their way into my bedroom and woke me up by kicking and banging their rifles. I was stunned and frightened. I got out of bed. An officer asked me my name and I told him. He told me to get dressed because I was in pajamas.

    I got dressed while the soldiers spoke with my father. I understood that they were going to arrest me. The soldiers took me to the street, where one of them tied my hands behind me.  They took me to the main road, where there were lots of army vehicles. One soldier blindfolded me, and then they put me into a jeep. A few minutes later, we drove off.

    On the way, the soldiers slapped me a lot, hit me with the barrels of their rifles, and kicked me. One of them kicked me hard in the head. I couldn’t defend myself because my hands were tied behind me. The soldiers also swore at me, calling me a bastard, maniac, and much, much worse.

    The jeep stopped and the soldiers put me in some kind of shipping container. A female soldier came in and took off the blindfold and gave me a medical questionnaire. She asked me if I had any of a long list of diseases, and I said I didn't. After that, the soldiers blindfolded me again and sat me on the floor. While I was sitting there, a soldier came and stepped on my legs and banged my head against the side of the container. He did that few times. He also swore at me and kicked me a few times. That lasted until morning.

    In the morning, the soldiers took me and other detainees and had us sit between the containers. We sat there a long time, more than three hours maybe. They took us, one at a time, to interrogation.

    Jawabreh told B'Tselem that he was also treated violently during his interrogation.

    Before the interrogator began to question me, he pushed me against the wall of the container. Then he sat me down on a chair opposite his table and questioned me about stone throwing, and about a particular day – whether I threw stones at cars or army jeeps,  who was with me, and whether my family knew I throw stones. I told that I didn’t throw stones at all. He said I was lying.  He got up a few times and tightened the binding on my hands.

    Ultimately, Jawabreh confessed to the offenses the interrogator claimed he committed. He was convicted in a plea bargain and sentenced to four months’ imprisonment, which he served in Ofer and Megiddo prisons.

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    Undercover security forces detain 13-year-old boy playing with his friends in East Jerusalem

    Islam Jaber. Photo: 'Amer 'Aruri, B'Tselem

    East Jerusalem was annexed to Israel, so minors detained there are entitled to all the protections in Israel’s Youth Law. Despite this, in many instances police have violated the rights of Palestinian minors suspected of stone-throwing.

    On the afternoon of Friday, 22 July 2011, boys in East Jerusalem’s Ras al-’Amud neighborhood were playing soccer in the street. A police car crossed the intersection and a Border Police jeep blocked off the road. Then a civilian vehicle stopped alongside the boys, and security forces dressed in plain clothes got out. They grabbed Islam Jaber, a 13-year-old boy who lives in the neighborhood, forced him into the vehicle, and drove off. The action was filmed on a security camera installed outside a nearby shop.
    Jaber described what happened next:

    The undercover forces made me lie down on my back, on the floor of the vehicle, and blindfolded me with a piece of cloth. One of them asked me in Arabic:, “What’s your name? How old are you?” I told him. I was very scared, and I cried. I didn't know what would happen to me, and didn't understand why they grabbed me like that. Later, they asked me a few more questions. After each question, one of them slapped me.

    He was taken to an unknown place for questioning about stone throwing. His parents were not present, and he was not allowed to consult with an attorney. He described his interrogation:

    The interrogator asked me: “Why did you throw stones”? I said I didn't. They took off the blindfold, and I saw a policeman and alongside him a man with a mask on his face and dressed in civilian clothes. The policeman told me to sign a piece of paper that had Hebrew writing. I told him I can’t sign any piece of paper. He said, “All right.” He blindfolded me and then the interrogators began to beat me. They hit me all over my body with their hands, and I think also with a rubber club. It hurt a lot, and I cried. A short while later, somebody came and told me to stop crying, and that my father would arrive soon and take me home. They stopped beating me.

    After about an hour, Jaber was released. His father took him to the emergency room at Hadassah Hospital where he was found to have a few external bruises. The boy says that, since the incident, he has been waking up in the middle of the night due to nightmares. 

    Three days after the incident, his father filed a complaint with the Department for the Investigation of Police, which opened an investigation. The boy gave his testimony to DIP investigators. The investigation has ended, but as far as B'Tselem knows, DIP has not decided on the course of action to be taken in the file.

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    Video: Undercover security forces detain 13-year-old boy

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