This morning (15 May 2012), the media reported that an agreement was reached between Israel and representatives of the Palestinian prisoners held in Israel. The agreement follows a hunger strike by almost 2,000 prisoners that lasted some six weeks. The prisoners raised a number of demands, focusing primarily on the conditions of their imprisonment. One of the demands was the resumption of family visits for the prisoners from Gaza, which were stopped in 2007 when Hamas took control in the Gaza Strip. According to the initial media reports, Israel has agreed to resume family visits, with a number of limitations that have not yet been clarified.
According to Israel Prisons Service (IPS) data, as of 30 April 2012, Israel was holding 453 prisoners and detainees from Gaza, including 44 individuals imprisoned until the end of proceedings against them and one held since July 2009 under the Law on Illegal Combatants; the latter, like administrative detainees, does not know what he is accused of or when he might be released. One of the prisoners is a minor, who was arrested in February 2012. Prior to the Shalit deal, Israel held 613 prisoners and detainees from Gaza. Since the summer of 2007, these prisoners and detainees are not permitted visits by their families.
On 6 June 2007, after Hamas took over the Gaza Strip, the Israeli military decided to end family visits by Gazans to prisons inside Israel. The ministerial committee on national security formally approved this decision three months later, in September 2007. In two decisions adopted on 5 September 2007 and 19 September 2007, the committee decided that the Gaza Strip would be defined as “hostile territory” due to the Hamas takeover. This definition permits restrictions on the passage of goods into and out of Gaza, the reduction of gas and services supplied, and restrictions on movement to and from Gaza, subject to judicial oversight and humanitarian considerations.
Members of prisoners’ families told B’Tselem about the hardships they face due to the prohibition on visits to their loved ones. Prisoners defined as “security prisoners” are not allowed to talk on the telephone, so even this contact is unavailable to them. Maintaining contact is very hard for the families and the prisoners. This creates a huge emotional burden on children growing up without their father, on women raising a family alone, and on parents and siblings whose son or brother is far away.
Eleven-year-old Jumana Abu Jazar of Rafah lost her mother when she was four months old, and her father was arrested when she was two. Jumana told B’Tselem about how difficult it is for her: “I only know my father from the pictures we get from released prisoners. I always miss him, especially on holidays and special events like when I get a certificate of excellence at school, and all the parents of the outstanding students come except mine. I stand alone and cry because my father and mother are not with me and are not sharing the happiness of my success and excellence.”
Yusra al-Barim, age 50, from Khan Yunis, told about the sorrow her late husband felt before his death, when he was unable to visit his son: “He was always saying to me: ‘I ask God for two things: the first is to go on haj to Mecca and the second is to see my son Mus’ab before I die.’”
Safiyyeh a-Shaf’i, age 68, from a-Nuseirat refugee camp, explained about how difficult it is for her that she is not allowed to visit her son, who is 29: “I am constantly thinking about and worrying about my son. I wonder how he is feeling, if he is sick, whether he is eating well and whether he is dressing properly or if he’s cold. When he was first imprisoned, in 2003, I would bring him food and clothes and I would put money for him in the canteen. The situation was relatively good and I did not feel as worried like I do now because I saw him every two weeks. We would talk about the neighborhood and the neighbors, and about relatives. Despite all the hardships of traveling to the prison, when I got there, I would forget my exhaustion and the humiliations of the security checks on the way.”
In B’Tselem’s correspondence with the authorities and in official publications, two main rationales were presented for prohibiting family visits: (1) the absence of an authority with whom to coordinate visits; and (2) the Israeli government decision preventing people’s exit from Gaza. Additionally, based on the response from the ministry of defense spokesperson to the demand from the International Red Cross (ICRC) that Israel renew family visits, it seems that the prohibition on visits was also connected to the conditions under which then prisoner Gilad Shalit was held.
In June 2008, some of the prisoners, their families, and nine human rights organizations, including Hamoked-Center for the Defense of the Individual and B’Tselem, petitioned the Supreme Court. The petitioners demanded that Gaza residents with family members imprisoned in Israel be permitted to visit them. The petitioners argued that these visits are protected by the basic right to a family life, anchored in the Fourth Geneva Convention to which Israel is a signatory and by international norms regarding prisoners during international conflicts. In addition, the ICRC agreed to continue to coordinate the visits, so that no coordination would be necessary between Israel and Hamas. The petitioners argued that this removes the basis for the first rationale for preventing visits. The petitioners argued further that the sweeping decision to cancel the visits constitutes collective punishment and is inconsistent with the government’s position that it is proper to include visits to prisons within the framework of humanitarian exceptions to the prohibition on entry of Gaza residents into Israel. As to the unofficial argument that preventing visits is intended to put pressure on Hamas due to the conditions of imprisonment imposed on the soldier Gilad Shalit at the time, the petitioners emphasized that such pressure is prohibited and that under the Geneva Convention, violation of the convention by one side does not constitute justification for violation by the other side.
In its response to the petition, the State argued that since Israel commenced the process of Disengagement from the Gaza Strip, it is no longer considered an occupying power in the Gaza Strip and that with Israel’s declaration of Gaza as a “hostile territory,” Israel has no obligation to permit Gaza residents to enter its territory, not even to visit prisoners; this would be true for any individual from a country hostile to Israel who was imprisoned here, and would not be entitled to visits from family members. The State emphasized that the restriction is on the entry of the visitors from Gaza, and not against the visits themselves, since residents from the West Bank or from Israel who are relatives of prisoners from Gaza can visit them. The State clarified that this is a matter of policy and that it has the right to decide who will enter its territory. By means of this argument, the State also rejected the claim of collective punishment, emphasizing that it had no obligation to permit citizens of a hostile entity to enter its territory. Regarding the argument about Gilad Shalit, the State said that the visits continued even after his abduction and were stopped only when Hamas took power in Gaza, and that there is no connection between the two, even if it was impossible to ignore the conditions of Shalit’s imprisonment at the time the decision was made regarding visits by foreign residents to Israel for the purpose of family visits.
The Supreme Court denied the petition, and stated in its ruling that the decision falls within the realm of the government’s policy-making, a broad area in which the court does not usually intervene.
The ongoing denial of the rights of prisoners and detainees from Gaza to received family visits is a very serious blow to their right to family life. Even before the Disengagement, Israel chose to imprison Gaza residents in prisons within Israel, a violation of international law requiring anyone incarcerated by an occupying power to be held within that territory. Hence, Israel has the obligation to enable the family members of prisoners from Gaza to visit them. Furthermore, over the years, Israel has permitted residents of Gaza to leave the Gaza Strip, even when there were no humanitarian reasons for doing so. Thus, for example, in 2011 some 10,000 merchants from Gaza entered Israel. As such, there is no justification for Israel’s decision to restrict the movement of prisoners’ families, who even in Israel’s view do not constitute a security risk.