In 2004, the UK House of Lords delivered a judgment in A & Others and X & Others v. Secretary of State for Home Affairs case, in what is regarded as one of the most important decisions issued by an English court in more than 50 years.
The court held that there was no “state of public emergency threatening the life of the nation”, which may have justified derogating from protecting fundamental rights. The court further described indefinite detention contained in “anti-terror laws as the stuff of nightmares, associated with France before and during the revolution, with Soviet Russia in the Stalinist era”.
Almost a decade later, on June 26, the UN Human Rights Council deliberated on the situation in Palestine and other Arab-occupied territories. During the deliberations, the council issued a warning to Israel that there may be serious repercussions as a result of its campaign against the Palestinian people, which constituted a continuing violation of international humanitarian law, following the abduction of three Israeli teenagers.
On June 12, three Israeli teenagers, Naftali Fraenkel, Eyal Yifrach and Gil-ad Shaar, went missing. On June 30, their bodies were found in Hebron under a pile of rocks. Israel has blamed Hamas for the murders, whereas Hamas has denied any responsibility.
It is clear that those responsible must be apprehended and brought before a court of law. The response by the Israeli Defence Force (IDF) has seen the killing of up to nine Palestinians, the arrest and holding in administrative detention of more than 500, and the targeted bombing of Gaza. Those persons responsible for the murder of the three teenagers have still not been found.
This is clearly a wholly disproportionate response, and there is a very real risk of a situation already at boiling point, exploding. This has been further exacerbated by the kidnapping and murder of a Palestinian teenager, Mohammed Abu Khdair, believed to be motivated by revenge.
Israeli Prime Minister Benjamin Netanyahu condemned the murder and has called for calm. He urged both sides not to take the law into their own hands. However, considering the disproportionate response by the IDF, it is clear his statement will be viewed with scepticism.
One of the key violations used by the IDF is the use of administrative detention. The use of this tactic polarises opinion. Recent figures suggested that 191 registered Palestinians are being held by way of administrative detention. However, following the recent operations in the West Bank, where reportedly over 500 people have been arrested, the previous official figure is likely to have increased significantly. Given that the recent operation in the West Bank was to try and find the kidnapped teenagers, administrative detention cannot be justified given that the security of the state is not at risk. This tactic, along with the recent bombing of the Gaza Strip, and the destruction of a suspect’s house, is simply being used as revenge, as collective punishment.
The kidnapping and subsequent murder of the three Israelis and one Palestinian are horrific crimes. However, any response must be measured, proportionate and within the confines of the law. The actions taken by Israeli authorities thus far are not: they are purely retributive.
Given the number of prisoners detained under such conditions in Israel, there is a substantial argument that it is being used excessively and in breach of the international treaties, to which Israel is signatory.
If there is evidence implicating a person in criminal activity, then criminal charges should be brought, and the judicial process followed. Conversely, if there is insufficient evidence to bring such proceedings, then it should follow that the prisoners should be released immediately. It is not in accordance with any interpretation of international law to detain rafts of people without charge and with no real opportunity to challenge their detention.
A further violation of international law concerns the treatment of such prisoners, as they have been removed from occupied territory and held inside Israel: a violation of the fourth Geneva Convention. It is telling to note that out of the 24 detention facilities used by Israel, 20 are located outside of the occupied territories. Further, they have been placed into solitary confinement, and both physically and mentally abused, by way of being forced to strip naked and subjected to verbal abuse.
Israel has a fundamental duty to uphold the principle of due process, the right to a fair trial, and further, to take all necessary steps to ensure the end of torture. It would appear that the authorities are failing in this duty.
The current practice is further aggravated by the fact that Israel has recently presented legislation that will allow the force-feeding of those who engage in a hunger strike. It would therefore appear that rather than address the issue, Israel’s response is to seek to legislate and attempt to legitimise a further draconian and unjustifiable process.
Such legislation does not have the support of the head of the Israeli medical association, who has announced that force-feeding of prisoners who embark on a hunger strike amounts to torture, and furthermore, medical professionals will refuse to obey the bill even if it is passed.
Positive action needed
To seek to implement such practices through legislative amendments will cause an outcry from the international community. However, this is not enough. There must be positive action, but for that, there will need to be a consensus among the international community to act. Taking any action against Israel for its treatment of Palestinians is generally frowned upon, particularly by the US.
A stark reminder of this can be found in the UN Security Council’s deliberations to refer the situation in Syria to the International Criminal Court in The Hague. The US supported a draft resolution, but conditioned its support on any resolution explicitly excluding any investigations into the Golan Heights. The US also recently criticised the State of Palestine for ratifying a number of international treaties – the irony being that ordinarily, a state is criticised for not signing international treaties.
Despite the fact that states tend to shy away from criticising Israel, perhaps there is change on the horizon. Recently, a court in Istanbul issued international arrest warrants against four Israeli commanders in the IDF for their alleged involvement in the Mavi Marmara flotilla incident. France, Germany, Italy and the UK have advised their citizens against financial activity and investments in Israeli settlements in the occupied territories. It is only through such action that there will be real change.
It is unacceptable for any state to detain persons, potentially indefinitely, on secret evidence held by the security services, without recourse to challenge.
Nelson Mandela famously said: “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” Based on this criteria, a harsh judgment should be made of Israel, a judgment that may justify the suggestion that Israel’s treatment of Palestinians is a modern-day example of apartheid.
Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.