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Family visit to Palestinian prisoners at Gilboa Prison. Photo by Hagai Aharon/AFP/Getty Images, 5 March 2016
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Court-sanctioned vengeance: HCJ upholds ban on family visits for Hamas prisoners from Gaza

According to figures updated through April 2019, Israel is holding 303 Palestinians from the Gaza Strip in prison facilities with its sovereign territory. Two of them are minors.

Israel makes it unbearably difficult for residents of Gaza to visit family members imprisoned within its territory. In defiance of international law, Israel completely prohibited such visits from 2007 to 2012. When prison visits were renewed in July 2012, the eligibility criteria were so strict that only parents and spouses were allowed to visit prisoners. Gradually, Israel began allowing children up to age 16 to visit incarcerated parents, as well.

Israel has banned family visits to Hamas prisoners from the Gaza Strip, numbering about 100, since 1 July 2017. The ban was instated following a government resolution to impose restrictions on Gaza residents, including downgrading prison conditions, in an alleged bid to put pressure on Hamas. The movement is illegally and immorally holding two Israeli civilians, Avera Mengistu and Hisham a-Sayed, and the remains of two Israeli soldiers, Hadar Goldin and Oron Shaul, to be used as bargaining chips in negotiations for a prisoner exchange .

Following the prison visit ban, in August 2017, four Hamas-affiliated prisoners from the Gaza Strip filed a petition with Israel’s High Court of Justice (HCJ). Nearly two years later, in June 2019, Justice Neal Hendel rejected the petition, with Justices Anat Baron and Yosef Elron concurring.

This judgment follows in the footsteps of the HCJ’s longstanding jurisprudence in petitions filed by Palestinian residents of the Occupied Territories. The court – which was supposed to provide protection for a population with no representation in the political process that is ruled by a foreign military regime – has consistently provided a legal stamp of approval for the violation of Palestinians’ rights, including home demolitions, detention without trial, expulsion of communities, torture in interrogation, road closures and violations of the rights of suspects and due process rights. With these rulings, the justices not only betray their role, but also play a key part in entrenching and maintaining the regime of occupation.

The judgment in HCJ 6314/17 Namnam v. Government of Israel:

In the very opening of the judgment, Justice Hendel reiterates the governing constitutional-legal principle relevant to the matter: Prisoners do not lose their rights upon entering jail, and “a prison sentence does not, in and of itself, deny the prisoner’s dignity or take away their basic rights”. However, he immediately proceeds to find that this principle does not apply in the case before him, since prison visits, including by first-degree relatives, are not a right but a privilege, a “benefit” that the prison commander may grant or deny:

It may be argued that completely severing prisoners’ interaction with the outside world in general and their family members, in particular, impinges on the constitutional rights to contact with the world outside the prison walls and to family life... However, so long as other means of communication remain available to the prisoners, the constitutional review of the visit ban concludes at the first stage – since the act does not amount to a violation of a constitutional right and need not be put to the tests stipulated in the limitations clause.

It is clear, Justice Hendel stresses, that the fact that this is a benefit extended to prisoners does not “leave them vulnerable to arbitrary action on the part of the administration” and that any decision to withhold the benefit must be made in keeping with the law, fall in line with the rules of administrative law, be “based on pertinent reasons” and “meet the tests of reasonableness and proportionality”.

Justice Hendel analyzes the legal provisions applicable to prison visits and finds that the minister of public security may order the Israel Prison Service (IPS) to withhold visits due to pertinent considerations which “include, alongside maintaining the proper operation of the prison, also general national security considerations”. Justice Hendel then considers that, “protecting national security, in its broad sense, is, therefore, considered part and parcel of the proper operation of prisons – and is one of the considerations that the competent authorities may take into account”.

While Justice Hendel is aware that in this case, prison visits were denied as a way of pressuring Hamas rather than based on “concrete concern over abuse of the visits by any of the prisoners”, he sees no issue with the measure since it was a denial of a privilege rather than a punishment, and therefore, “guilt ” is not a requisite. According to Justice Hendel, once the protection of national security was found to be one of the purposes of the law, “the main question in terms of competency is whether the minister’s decision serves this purpose, whatever the source of the security challenge it is meant to address may be”.

The justice goes on to hold that, “there is no justification for an interpretation that leaves security considerations that are ‘external’ to the prisoners out of the scope of the relevant security purpose”. In support of this finding, he cites a judgment written by Justice Hanan Melcer regarding the blanket ban on security prisoners’ studying at the Open University, stating that such an interpretation would curtail “the ability of the State of Israel to ‘combat terrorism by way of withholding privileges, including the use of necessary and legitimate leverage against hostage terrorism initiated by terrorist groups for the release of security prisoners affiliated with them’, as my colleague, Deputy President H. Melcer, has remarked”.

The government decision to ban family visits with Hamas prisoners also meets the requirements of Israeli administrative law, according to Justice Hendel. Hendel is certain that the decision is reasonable since, “it is apparent that the minister of public security was presented with various professional opinions. However, there is no cause to intervene in his decision to adopt the position of the coordinator for war prisoners and absentees whom the Respondents consider as possessing ‘the most suitable knowledge, understanding and tools to assess the impact of visit cessation on Hamas’. Without cause to intervene in this professional pronouncement, I have not found that the balance struck by the minister of public security exceeds the bounds of reasonableness”.

Justice Hendel notes further that the harm caused to prisoners is, in any event, “limited” and has a “restricted” impact, both in terms of the number of prisoners affected and in terms of the harm caused to them:

It must be recalled that the minister’s decision affects a very small group of prisoners, some 100 individuals, out of more than 6,000 security prisoners and more than 800 Hamas prisoners. The intensity of the impact is also restricted, since even prisoners who do belong to this group have not lost all contact with the outside world. They may correspond with their families, and even meet with religious clerics, representatives of the International Committee of the Red Cross, lawyers and the like.

Justice Hendel goes on to find that the decision is also proportionate:

Given the aforesaid position of the coordinator for war prisoners and absentees, it is not difficult to conclude that the minister’s decision does have a rational connection to its purpose – putting pressure on Hamas to advance the return of the civilians and the remains of the IDF soldiers to Israel… In the absence of a vested right to receive visits, and given the alternative means of communication available to the prisoners, which mitigate the intensity of the potential injury to the general rights to contact with the outside world and to family life, this suffices.

Further along, Justice Hendel states: “The security and human benefit potentially achieved through the policy of denying visits, namely, the return of Israeli civilians (let us refer to them by name, Avera Mengistu and Hisham a-Sayed) and the remains of the IDF soldiers held by Hamas, outweighs the certain degree of injury caused to the Petitioners.

Justice Hendel concludes the judgment by stating, “All that is left, therefore, is to express hope that the decision of the minister, which, at this point in time, does, as stated, meet the tests of reasonableness and proportionality, will in fact aid the safe return of the Israeli civilians held by Hamas and the proper burial of IDF fallen soldiers Lieutenant Hadar Goldin and Staff Sergeant Oron Shaul”.

 

Visit ban severely harms prisoners and families

In his judgment, Justice Hendel accepted nearly all of the arguments put forward by the state, ruling that the decision to deny Hamas prisoners family visits from Gaza was lawful, reasonable and proportionate. However, his findings raise several serious questions.

A. Gaza prisoners have become bargaining chips for achieving a goal that is external to them

Justice Hendel treats the prisoners as “bargaining chips” in negotiations with Hamas, as if they were a tool that can be legitimately used to achieve a goal external to them. The harm is not inflicted on them because of their own conduct or that of their family members. This also means that they are powerless to influence or change the decision.

This particular finding goes beyond what the court has previously ruled. Previous rulings on similar issues focused on concrete concerns relating to the prisoners themselves, even if only as lip service and even if the allegations were unjustified. In a petition filed by security prisoners to revoke the ban on telephone calls, the court accepted the state’s argument that the ban had been motivated by concern that prisoners “would maintain telephone communications with hostile elements, possibly compromising national security”. In a petition filed by prisoners against the IPS ban on taking up studies at the Open University, the court ruled that the ban was justified since the organizations covered tuition costs, “both as compensation for the crimes [the prisoners] committed and as an incentive for continued actions against the state”, which may threaten national security. In another case, several prisoners petitioned the court to receive visits from non-immediate relatives. Here, too, the court said such visits could reasonably be used to “transmit messages” that would pose a risk to national security.

The court has clearly used “national security” in these cases as a convenient way to uphold violations of prisoners’ rights even when there is no evidence that they pose any threat. However, in this most recent case, Justice Hendel removes even this thinnest of veils. The state, with the court following suit, openly admits to using the prisoners and their relatives as a means of pressuring Hamas.

Justice Hendel compares his judgment to a previous judgment in which the Supreme Court ruled that Lebanese citizens could not be kept in administrative detention as “bargaining chips” for negotiating the return of Israeli soldier Ron Arad. Justice Hendel believes the two cases are entirely different since in the previous case, the detention was indefinite, while in the current matter, “no protected constitutional right has been violated, since the prisoners and their families have no vested right to visits. Hence, there is no justification for an interpretation that leaves security considerations that are ‘external’ to the prisoners out of the scope of the relevant security purpose”.

However, the similarities between the two cases outweigh this difference. Both cases focus on using human beings as a means to an end. As Justice Barak noted in the judgment concerning the Lebanese citizens, this is “not a ‘quantitative’ transition but a ‘qualitative’ transition”. An instrumental approach to human beings, in this case as pawns in a greater game, by whatever means, detention or denial of contact with family, strips them of their dignity and agency.

Justice Hendel cautions that if he were to rule visits could not be denied, “the state’s ability to combat terrorism by way of withholding privileges would be compromised”. However, prohibiting “withholding privileges” would, in fact, be a welcome result. Treating persons as a means to achieving an end they have no influence over is inherently wrong, and the state would do well to avoid taking that path.

B. The visit ban violates the prisoners’ rights

Security prisoners are held in conditions that isolate them from the world and from their families. Unlike other prisoners, they are denied telephone calls, prison leave and conjugal visits. All they had left, until the ban was imposed in July 2017, was the chance to see just a few of their relatives, once every few weeks, for a short time, behind a glass wall.

Without offering a compelling explanation, Justice Hendel plays down the injury the visit ban causes prisoners, referring to it as “restricted” given that they “have not lost all contact with the outside world. They may correspond with their families, and even meet with religious clerics, representatives of the International Committee of the Red Cross, lawyers and the likes”. It is difficult to grasp why the honorable justice thinks that exchanging letters with family, or meeting with various individuals in an official capacity, could substitute a face to face meeting with loved ones.

Israel chose to incarcerate these prisoners in its own territory, in defiance of international law. It must, therefore, allow the visits without arbitrary restrictions, in recognition of the fact that contact with family is a fundamental right to which everyone is entitled, including prisoners. Other prisoners held inside Israel receive family visits regularly, including security prisoners from the West Bank. These visits are not a reward for good behavior, but fulfillment of the prisoners’ right to maintain contact with the outside world and to continue to have a minimal level of family life.

Even the justices of the Supreme Court, whose judgments Justice Hendel quotes, have acknowledged how important it is for prisoners to maintain contact with their families – even if they ultimately found it was only a “privilege” that could be withheld and refused to pronounce it was a vested right. In the judgment delivered in the case regarding visits from non-immediate relatives, Justice Danziger held:

The right to maintain the family unit is more powerful than the right to communicate and interact with other parties who are not part of the prisoner’s family unit. The reason for this lies in the power of the right to family life and the ability to exercise, to some extent, the right to freedom of speech through contact with family members... The importance of face to face meetings between the prisoner and visitors cannot be underrated, as they enable communication on a level and of a quality unmatched by a letter or a telephone call.

In the same judgment, Justice Procaccia held:

Prison leave and family visits in prison can be viewed as part of the human rights that prisoners continue to have even when in prison, rights that are not negated simply as a result of the deprivation of liberty involved in incarceration, which is the outcome of the punitive sanction. Prison leave and family visits are some of the aspects that make up the contact that prisoners-humans have with the world and with their close environment. They are a human need. They are part of the prisoners’ essence as human beings, part of their human dignity. They make an important contribution to their welfare and rehabilitation over the course of their incarceration.

C. The visit ban violates the prisoners’ families’ rights

Justice Hendel completely ignores the severe injury to the family members who are forcibly cut off from loved ones incarcerated inside Israel’s sovereign territory, which the family members cannot enter without Israel’s explicit consent. The visits themselves, when they were still allowed, were short and involved and arduous journey. Family members would leave home before dawn, undergo a humiliating security screening before the visits, and return home in the evening. The visits themselves were brief, and visitors were not allowed any physical contact with their loved ones. Still, these visits were the only contact they had with their family members.

Testimonies collected by B'Tselem from family members in the Gaza Strip shed light on the unbearable hardship caused by the separation.

For example, in a testimony she gave B'Tselem field researcher Olfat al-Kurd, Amneh a-Zawar’ah, 39, a mother of five, described how much she misses her husband, Ibrahim, who was taken into custody in late 2009:

At the beginning of 2013 [after visits were renewed], I began visiting Ibrahim in Nafha Prison. I’d visit once every three months. All the visits were very hard because of the searches, and the prohibition on bringing in clothes, food and water. Even when my little children came with me, I wasn’t allowed to bring food and drink for them. The visit was only 45 minutes long, and it was never enough. They wouldn’t let even my children go in to see their dad and give him a hug. They only talked to him from behind the glass partition. Sometimes, in the last ten minutes of the visit, they would let Muhammad, my son, who was five years old, go in and sit next to his father and hug him.

My only connection with my husband is letters and pictures he sends with the Red Cross. The kids miss him. They want to hear his voice, to see him. They keep asking when they’ll be able to visit their father in prison. My son Firas, who’s 16 now, has forgotten what his father’s face looks like. I feel like he’s not interested in hearing about him.

Laila a-Tanani. She has not been allowed to see her son since 2016. Photo by Olfat al-Kurd, B’Tselem, 25 June 2019

Laila a-Tanani, 53, a mother of seven, described the hardship that the ban on visitation has caused her in a testimony she gave B'Tselem researcher Olfat al-Kurd. Her son Mamduh, 32, has been in Israeli custody since August 2007:

I couldn’t visit Mamduh for about five years. I started visiting him only in 2012. During that time, my contact with him was through letters he sent me. His letters would have melted a heart of stone. When I read them, I missed him so much I cried. I couldn’t talk to him on the phone, and the letters weren’t enough.

In 2012, families of prisoners from Gaza were allowed to visit their sons in jail in Israel. I was over the moon. I was going to see Mamduh for the first time in five years. On the first visit, at Rimon Prison, I couldn’t believe I was going. I went to the prison on my own. When I saw Mamduh, I cried a lot. He asked me not to cry. I told him they were tears of joys at seeing him. The visit lasted only 45 minutes, which didn’t feel like it was enough to sit across from him and see him, but I still went home happy.

I kept visiting Mamduh on my own, once every three months, because the Israeli army wouldn’t let his father and siblings visit. At the end of 2014, they finally let my husband visit him, too. We kept visiting until they banned the visits to Hamas prisoners.

In September 2016, my husband and I were going to visit my son. When we got to Erez Crossing, the Israeli military took us in for interrogation and wouldn’t let us get on the bus with the other family members. They kept us at the checkpoint all day. We didn’t get home until evening, without visiting Mamduh. When the bus took off from Erez Crossing to prison with the rest of the families but without us, I felt like my heart went with them. I wanted to be on that bus so badly. I haven’t been able to visit my son since then.

This is a difficult time. I spend my days heartbroken and crying over Mamduh and his life that’s being wasted in jail. I feel like my heart is literally burning. Sometimes, I hold back the tears, so my husband and children don’t see me crying.

During one of the visits, the prison management let me take a photo with Mamduh. I screamed with joy. I went in and hugged him and started crying with happiness. Those were unforgettable moments that I yearn to experience again.

As’ad Abu Saleh with Mustafa and Muna, two of his grandchildren who cannot visit their father. Photo by Olfat al-Kurd, B’Tselem, 26 June 2019

As’ad Abu Saleh, 56, has 12 children, two of whom are incarcerated in Israel. He himself was a prisoner in Israel and was released in the Shalit deal in October 2011. Because he is a former prisoner, Israel did not allow him to visit his sons even when family visits to Hamas prisoners were allowed. In a testimony he gave to B'Tselem field researcher Olfat al-Kurd, he said:

I keep in touch with my sons through letters. They write and ask how I’m doing and how the family is doing. The letters aren’t enough, though. I miss my sons. I want to hear their voices, see them, understand what they’re going through. I long to see them. I’ve almost forgotten what their faces look like and what their voices sound like. I hope I’ll see them released soon.

D. The visit ban is not motivated by “security considerations” but by vengeance, pure and simple

To justify the visit ban, Justice Hendel turns to “general security considerations”, including the “security need” to bring back the remains of the Israeli soldiers and the Israeli civilians held in Gaza. However, these considerations were never part of the public debate surrounding security prisoners’ conditions as it played out outside the courtroom. This debate focused largely on the desire to get back at Hamas for denying its Israeli hostages visits, and to subject Hamas prisoners held in Israel to the same conditions Hamas forces on its Israeli captives.

A government-backed private member bill proposed by former MK Oren Hazan, which did pass a preliminary reading, sought to ban family visits to Hamas prisoners. The bill expressly referred to the need for “balanced” treatment – if Hamas does not allow visits, neither will we:

Wherein a terrorist organization or a declared organization holds an Israeli who has been kidnapped or taken captive and deprives said person of visits by a representative of the Government of Israel, a humanitarian organization by consent, or a family member, a security prisoner who is a member or sympathizer of said organization shall not receive visits other than visits from a lawyer or a representative of the International Committee of the Red Cross.

The explanatory notes for the bill state:

An untenable situation has developed whereby terrorist organizations have adopted a strategy of kidnapping and holding Israeli citizens without regard for the conditions in which they are held and without allowing visits, which severely harms the morale and national fortitude of the State of Israel. On the other hand, the State of Israel does allow security prisoners who are members of terrorist organizations to receive visits. This bill is designed to address the incongruency between the prison conditions the State of Israel provides for the terrorists who harm it and those provided by terrorist organizations to kidnapped Israelis: Avera Mengistu, Hadar Goldin and Oron Shaul.

In a Knesset debate regarding the bill held in October 2018, Public Security Minister Gilad Erdan made an attempt to argue that the goal behind denying visits is to “dial up the pressure” and “make them want our captives to return home, too”. However, the minister soon clarified the true intention of the bill, saying it would allow ending “the absurd asymmetry between the conditions in which Israelis are held captive without trial by Hamas and the conditions terrorists receive here in Israel”. Minister Erdan was quick to laud Justice Hendel’s recent ruling, noting, “it’s illogical and immoral to allow despicable terrorists to receive family visits while Hamas is holding the remains of our soldiers and Israeli civilians”.

This is the entire story in a nutshell: not “general security conditions”, not “proportionality tests”, not a balance between “privileges” and weighty considerations underlying the decision to withhold family visits to Hamas prisoners from the Gaza Strip. At the end of the day, what led to this decision was the “absurd asymmetry”, or, more simply, sheer vengeance.