Crescent International
By Ziyaad Ebrahim Patel
(The writer is an Attorney practicing Law in South Africa)
In March 2016, I addressed the 31st Session of the United Nations Human Rights Council in Geneva concerning the dire condition of Palestinians, including women and child prisoners.
The UNHRC Resolution emanating on the Human Rights Situation in the Occupied Palestinian Territory, including East Jerusalem.[1]
“the Council demands that Israel, the Occupying Power, comply fully with the provisions of the Fourth Geneva Convention of 1949 and cease immediately all measures and actions taken in violation and in breach of the Convention; calls for urgent measures to ensure the safety and protection of the Palestinian civilian population in the Occupied Palestinian Territory, including East Jerusalem; and demands that Israel, the Occupying Power, cease all practices and actions that violate the human rights of the Palestinian people. The Council also calls for urgent attention to the plight and the rights, in accordance with international law, of Palestinian prisoners and detainees in Israeli jails; demands that Israel, the Occupying Power, cease all of its settlement activities, the construction of the wall and any other measures aimed at altering the character, status and demographic composition of the Occupied Palestinian Territory; and requests the Secretary-General to place the presence of the Office of the High Commissioner in the Occupied Palestinian Territory on a firmer basis under the regular budget”.
Israel continues to be a habitual violator of international law.
As an occupying power Israel fails dismally under the Geneva Conventions and anti-torture convention, whereby Palestinian civilians and prisoners continue to endure daily crimes perpetrated by the Israeli Occupying Forces (IOF) and settler colonialism.
Impactful intervention is required by the international community in bolstering the “international intifada”.
At the Israel Apartheid Week (#IAW 2021), the IPPSRA Citizens Bill authored by the writer and supported within the broader Palestinian solidarity movement was unveiled.
In the words of Honourable Member of Parliament Mandla Mandela, “It is true lawfare has long been a weapon in the arsenal of liberation struggles all over the world. In our own quest for freedom in South Africa and the heyday of the 1960’s 1970’s, 1980’s and 1990’s Anti – Apartheid Movement in the UK, lawfare was a highly effective tool of struggle. Though the Boycott Divestment and Sanctions campaign at the time started out as feeble protest led by shop attendants, it was the sincerity of voices and the determination of their actions that triggered the avalanche. It is in such context within which our PRO-BDS Bill must land rather than a whimper of irrelevant and sporadic protests”.
“We require mobilisation on an unprecedented scale in support of the Pro- BDS Bill. I am in full support of the draft Bill. This is a historic moment in our struggle for a free Palestine. We must ensure that the widest spectrum of public engagement is mobilised and that we create global awareness of the campaign. For too long now has Apartheid Israel continued its atrocities, ignored international law and made a mockery of the International Criminal Court. All of this in broad daylight and within full view of the international community”.
IPPSRA aims to hold Israel to account for its egregious crimes through institutionalised campaign for legislating boycotts, divestments and sanctions.
The proposed legislation would mark South Africa’s cessation of diplomatic and trade relations with apartheid Israel.
Also, it would hold Israeli commanders and military servicemen accountable for crimes perpetrated with impunity.
Investigation and penal enforcement measures for South African male servicemen being recruited in the IOF and removal of protection of diplomatic immunity and privileges of Israeli state leaders.
Included must be the category of Israeli Prison Service agents notorious for inflicting interrogation methods of torture and humiliation.
There are voluminous records of administrative arrest of Palestinian boys as young as two years.
The wars of aggression in the Gaza Strip, the IOF remains criminally responsible causing catastrophic destruction in 2008-2009 (Cast Lead) and 2014 (Protective Edge), while the Gaza Strip since June 2007 remains under siege and naval blockade.
IOF war crimes in 2010, aboard the Freedom Flotilla Vessel, Mavi Marmara and atrocities perpetrated by IOF snipers in the right of return marches along the Gaza border are well documented.
Norman Finkelstein [2], cogently argues the military doctrine driving Protective Edge was carried over from Cast Lead, it was a repeat performance, but writ larger.
Factual evidence collected in the UN Report points to Israel deliberately targeting Gaza’s civilian population and infrastructure during Operation ‘Protective Edge’.
Israel had full intention beyond the perimeters of the laws of war and humanitarian law, in achieving military objective without any distinction or proportionality, whereby the IOF caused wanton destruction and aggression on Gaza’s civilian population.
The Center for Constitutional Rights [3]
Genocide is defined, not by a particular form of violence, but by general and pervasive violence. Settler colonial regimes are structurally prone to genocide and may indulge in “genocidal moments” when they become frustrated by the resistance of a colonized or occupied people.
In its concluding remarks, prominent human rights advocates and scholars argued the killings of Palestinians and their forceful expulsion from mandate Palestine in 1948, the Israeli occupation of the West Bank, East Jerusalem, and Gaza, the violence and discrimination directed at Palestinians by the Israeli regime have violated a number of human rights protections contained in international human rights, with genocide being among them.
The Palestine Center for Prison Studies Report [4]
The Zionist occupying forces continue to conduct arbitrary arrest, administrative detention in the period 2020-2021.
At least 170 children were held in Israeli prisons in three central prisons (Megiddo, Ofer and Damon), in addition to several detention and interrogation centres.
Children are subjected to the harshest conditions of enduring torture and psychological abuse.
Mohammed Munir Moqbel, 16, from Al-Oroub refugee camp in Hebron, was brutally assaulted with the butt of a rifle at the time of his arrest, resulting in fractures to the jaw and face and general bruises on his body.
Condition of Child Prisoners [5]
Israeli prison administration continues to deliberately deprive children of the necessities of life, and commit arbitrary intrusive practices against them.
Most notably, these include searches of their rooms and sections.
The authorities deprive children from visiting their parents or to legal representation and adult prisoners’ supervision.
Source: Israel Relocates 33 Palestinian Child Prisoners outside the West Bank - Palestine Chronicle
Children under the age of 18, in the occupied 1967 territories, Israel applies the Military Order (132) of 24/09/1967, which defines the Palestinian child as a person under the age of 16, in violation of the Convention on the Rights of the Child, whereby a child is every person under the age of 18.
Israel is a state party to the convention.
Women and Girl Prisoners
Article (79.2) of the First Additional Protocol of the Geneva Conventions 1977 states that cases of detained mothers should be considered a priority.
Source: Palestinian women suffer abuses in Israeli jails – a News www.anews.com.tr
(35 Palestinian women in Israeli jails on eve of Intl. Women’s Day – Pars Today)
Israel disregards – Article 25.2 of the Universal Declaration of Human Rights 1948, which affirms the protection of motherhood and childhood.
This entails right to special care, assistance and special protection for women is contained in Security Council Resolution (1325) of 2000 on the organization of the treatment of women and girls during interrogation and detention.
It calls on all parties in armed conflicts to take special measures to protect girls from gender-based violence and their special needs.
Journalists
The report monitored (72) cases including (26) arrests.
This includes Sindas Aweys during her coverage of events at al-Aqsa Mosque and released after investigation on the condition that she be removed from al-Aqsa Mosque for three months.
UN-WHO position on Covid-19 and Prisoners [6]
The protection of prisoners’ rights must be of the highest attainable standard of physical and mental health which is a fundamental human right of every human being without discrimination.
The United Nations (1990) Basic Principles for the Treatment of Prisoners set out that, “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation”.[7]
In this context, increased efforts are required to ensure a health promoting prison, which is described as having the following elements:
The WHO joint statement in mitigating the Coronavirus pandemic also urges, ‘political leaders to consider limiting the deprivation of liberty, including pre-trial detention, to a measure of last resort, particularly in the case of overcrowding and to enhance efforts to resort to non-custodial measures.[8]
Corona virus and administrative detention [9]
Despite demands and appeals by many international institutions including the UN, that administrative detention prisoners should be released because they are political prisoners and to curb the spread of the coronavirus pandemic, these went unheeded.
During 2020, administrative orders continued to be issued against prisoners, with total disregard of the international community.
The report monitored (1,100) administrative decisions during the year, including (750) of the decision to renew administrative detention for other periods of two months to 6 months, and reached (5) times for some prisoners, while (350) administrative decisions were issued against prisoners for the first time, most of whom were released prisoners re-arrested.
The Israeli authorities continue to abuse Article 78 of the Geneva Convention on the Protection of Civilians in Wartime (1949) - The Fourth Convention.
Their actions are contrary to international law, in terms of arrest without charge, which contradicts the text of article (9.2) of the International Covenant on Civil and Political Rights: “Any person arrested must be informed of the reasons for such arrest when it occurs, and must be informed promptly of any charge against him.”
It is, therefore, an arbitrary arrest according to the text of article (9.1) of the Covenant that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
Secondly, administrative detention is contrary to the principle of public trial.
It is based on a secret file and confidential evidence, where article (14.1) of the International Covenant on Civil and Political Rights guarantees the right to a fair public trial.
Thirdly, administrative detention is contrary to the principles of justice, impartiality since the military judge and the prosecutor serve in the Israeli army, and they work in the same legal unit.
Conclusion
Apartheid Israel’s IOF, security and prison personnel continue to violate Palestinian prisoners’ rights despite the coronavirus pandemic and entrench systematic discriminatory practices and laws to subjugate the will and aspiration of the Palestinian people for rights to self-determination.
The Israeli Police and Prison Service agents abrogate international norms and standards.
Palestinian children and political prisoners under military administrative detention must be immediately released and be protected under the Geneva conventions.
Under WHO coronavirus guidelines and international humanitarian law, detainees must be afforded proper medical and healthcare treatment.
The Coronavirus exacerbates the present dire situation of prisoners.
The utilization of lawfare and advocacy of the IPPSRA Bill shall go a long way in ensuring countries exercise complementarity universal jurisdiction amid international institutions intransigence, whilst the ICC’s decision to exercise criminal jurisdiction for IOF crimes perpetrated in the Gaza Strip in 2014 remains encouraging.
Israeli leaders, IOF, police and apartheid Israeli Prison Service agents must be excoriated and held criminally responsible for violation of fundamental Palestinian human rights.
Attorney Ziyaad Ebrahim Patel
South African International Human Rights & Trade Lawyer. Lawfare advocate for a free Palestine - An attorney who, under section 4(2) of the Right of Appearance in Courts Act 62 of 1995, has the right of appearance in the Supreme (High) Court in the Republic of South Africa.
[2] Betrayal II UNHRC, CH 13 – Gaza An Inquest into its Martyrdom, Norman C. Finkelstein
[3] Centre for Constitutional Rights – The Genocide of the Palestinian People: An International Law and Human Rights Perspective, 25 August 2016
[4] Palestine Center for Prison Studies (Gaza) - A brief report on arrests and conditions of Palestinian Prisoners in 2020
[5] Palestine Center for Prison Studies
[6] WHO | Prisons, Covid-19: prisoners’ rights violations compounded by pandemic
[7] (Principle 9, A/RES/45/111)
[8] Jennifer Venis, International Bar Association Multimedia Journalist, Wednesday 3 June 2020
[9] Palestine Center for Prison Studies
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