HCJ 2690/09 Yesh Din Volunteers for Human Rights v the Commander of IDF Forces in the West Bank
Yesh Din petitioned the High Court of Justice (HCJ) with the Association for Civil Rights in Israel and Hamoked-Center for the Defense of the Individual against the incarceration of Palestinian detainees inside Israel and holding remand procedures there. The petitioners stressed that international law prohibits holding detainees outside the occupied territory.
After the occupation of the West Bank and Gaza, Palestinians were detained or incarcerated (criminal and administrative) in two prison facilities located inside Israeli territory: Ketziot and Megiddo. After the IDF withdrew from Gaza, the number of detainees held in Israel increased significantly and additional facilities were opened. In 2010, at the time of the hearing in the petition, 690 Palestinian detainees were being held in the only prison facility in the West Bank: Ofer Military Prison. The rest of the approximately 6,500 Palestinian detainees were held in seven different facilities inside Israel.
Article 76 of the 1949 Fourth Geneva Convention determines that “Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein;” Article 66 of the Convention permits prosecution in non-political military courts “on condition that the said courts sit in the occupied country;” Article 49 of the Convention prohibits forcible transfer “of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not.”
The High Court addressed the issue in 1988 during the Sajdiya case, rejecting this petition that was based on the Geneva Convention. In the case in question, the petitioners raised several claims that asked the Sajdiya ruling be amended for several reasons. First, the petitioners specified that the Sajdiya case dealt solely with administrative detainees, in other words detainees who had not been charged with criminal offenses. Second, since the ruling in the Sajdiya case, the Geneva Convention is now considered customary international law. And finally, at the time of the Sajdiya ruling, Palestinians were able to leave the West Bank to Israel relatively freely; this has not been the case since the second intifada.
The Petitioners also noted that based on Yes Din’s report (Backyard Proceedings), conducting trials for Palestinian detainees in Israel prevents them from holding regular meetings with their relatives, and denies them of the basic right to hold counsel, since many times their lawyers are barred from entering Israel to meet with the detainee and prepare a defense. Several Palestinian detainees have complained that they were forced, as a result, to rely on Israeli lawyers.
The State responded that regulations legislated in the West Bank contradict the relevant Geneva Convention articles and that local law takes precedence. The State also claimed that the petitioners did not meet the necessary legal burden to revoke the Sajdiya case, and that transferring Palestinian detainees to the West Bank could violate their rights, among other things in light of the need to expropriate land in order to build new prison facilities.
In March 2010, the High Court rejected the petition. “The directives of the Geneva Convention should be applied in accordance with a reality that was not envisioned by those who drafted it; the geographical proximity of the area to Israel should also be taken into account, as well as the fact that the holding of detainees in Israel does not necessarily deprive them of family visitations and legal aid. Thus, the obligation to uphold humanitarian directives of the Convention and the prison conditions of the detainees should be separated from the claim regarding the location of detention. In light of the fact that the question of location of detention was settled years earlier by Knesset legislation and its legality was authorized by the Supreme Court, and in light of the special characteristics of Israel’s control over the area and the reality between Israel and the area, holding in prison facilities inside Israel does not in and of itself violate the material instructions of international law,” the ruling stated.
Petition Status: The petition was rejected