23 January 2008: B'Tselem calls to reject bill denying visits to security prisoners and detainees

On 23 January, the Knesset approved on preliminary reading a bill empowering the Minister of Public Security to prohibit relatives and representatives of humanitarian organizations from visiting security prisoners in cases in which the prisoners are members of organizations that hold an Israeli citizen captive and do not permit visits by representatives of the state, members of humanitarian organizations, or relatives.

The prohibition, which was previously approved by the Ministerial Committee for Legislation, breaches fundamental principles of international law and Israeli law. There is reason for special concern given that the government’s approval of the bill increases the likelihood it will be enacted into law.

Israel now holds in detention facilities some 8,500 Palestinians from the West Bank and the Gaza Strip. Every facility holding Palestinians, with one exception, lies within Israeli territory and not in occupied territory, in flagrant breach of international law, which prohibits the transfer of civilians, including detainees and prisoners, from the occupied territory to the territory of the occupying power. This breach brings in its wake other breaches: for example, it severely infringes the right of residents of the West Bank and the Gaza Strip to visit their relatives regularly and in reasonable conditions, and sometimes denies the right completely.

International law explicitly recognizes the right of prisoners and their relatives to meet in the detention facilities. This recognition results from the conception of human beings as social animals, who live in a family and community framework, and from the right to family life, which is also recognized in Israeli law under the Basic Law: Human Dignity and Liberty.

The bill also tramples on another important principle: despite the loss of freedom of movement, prisoners continue to benefit from other fundamental rights, except as expressly specified by law. Given that the imprisonment of a person does not justify infringement of his and his relative’s right to family life to the extent family life is possible under conditions of detention, there is also no justification in infringing the right to visits.

Most Palestinians imprisoned by Israel have children or siblings who are children. The International Convention on the Rights of the Child, which was ratified by Israel, requires the state parties to “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” (Article 9(3))
The proposed prohibition violates several fundamental principles of international humanitarian law: the prohibition on conditioning the exercise of rights on reciprocity (the lack of compliance by the adverse party does not justify a counter breach), and the prohibition on collective punishment (including the prohibition on punishing a person for an act that he did not commit, on collective penalties, and the prohibition on using means of terror and intimidation).

The Hamas leadership, which controls the security apparatuses in the Gaza Strip, must act to achieve the release of the soldier Gilad Schalit immediately and without conditions. Until they release him, the captors must treat him humanely and enable members of the International Red Cross to visit him. As noted, Schalit’s captors’ breach of the right to visits, as mandated by international law, does not justify Israel’s breach.

International humanitarian law prohibits the taking of hostages and forbids threats to harm them if the captor’s demands are not met. Furthermore, taking of hostages is deemed a war crime, for which the perpetrators are subject to personal liability.