Ideas Imprisoned - Part II: Conditions of Imprisonment
J. David Thompson
SWJ Note - This is a multipart series exploring administrative detention in Israel and the occupied Palestinian territory.
Ideas Imprisoned: Administrative Detention in the Occupied Palestinian Territory, Conditions of Imprisonment, and the Role of the International Community (Introduction to 5 Parts)
Ideas Imprisoned - Part I: Administrative Detention
The Israeli Prison Service (IPS) employs the medical professionals who treat the detainees, which creates a problem of dual loyalty.[i] This causes issues of impartiality towards the patient—the person receiving treatment or the IPS.[ii] Physicians have an ethical duty to their patient, but the physician cannot fulfill this obligation impartially because their employer is also the patient’s imprisoner. For example, physicians of the Israeli Prison Service did not report to the Committee Against Torture the number of suspected torture and ill-treatment cases.[iii] Further, the physicians failed to report injuries indicative of abuse.[iv] Additionally, the IPS often denies the requests of hunger-striking Palestinians for an independent physician visit, which contradicts other IPS directives.[v] In addition to failing to report to the treaty bodies, no reports were found of physicians reporting to anyone. Physicians may have a proclivity of not reporting for fear of employer reprisal.
The Knesset (Israeli Parliament) passed Israel's Prisons Ordinance (No. 48) 5775-2015, “Prevention of the harm of hunger strikers,” which permits force-feeding. The Israeli Prison Services considers hunger-striking a disciplinary offense.[vi] Force-feeding, though, constitutes cruel, inhuman or degrading treatment (CIDT) and may amount to torture.[vii] The High Court of Israel upheld this law despite outcries from human rights organizations.[viii] Force-feeding counters multiple human rights norms. The ICRC opposes force-feeding.[ix] The European Court of Human Rights held in numerous cases that force-feeding may amount to torture.[x]
The Government of Israel detains many Palestinians inside the 1967 boundaries of Israel, which makes it difficult or impossible for their families to visit.[xi] To make matters more complicated and further discourage visitors, the prisons are often on Israeli military bases. The Government of Israel holds administrative detainees in three areas: Ofer Prison (located inside Ofer Military Base), Ketzoit Prison (located in the Negev Desert), and Magiddo Prison (located inside another Israeli military base).[xii]
As indicated by the map, Ofer Prison is the blue dot inside the West Bank near Jericho. Ketzoit Prison is the green down near the Egyptian border in the Negev, which is inside the 1967 borders of Israel. Magiddo Prison is north of the West Bank, which is also inside the 1967 borders of Israel. Locating prisoners outside of the West Bank imposes numerous difficulties on family members wishing to visit detainees. Additionally, most Palestinians apply to enter the 1967 borders several days before traveling. This leads to multiple changes in taxis or buses, multiple searches, and more. Once the families arrive at the prison, the family then has to go through more searches to get onto the military base. In summary, it makes little difference whether the IPS hold an administrative detainee inside the 1967 borders of Israel or in a foreign country.
Many detainees, not just administrative detainees, face solitary confinement.[xiii] Solitary confinement is the “confinement of prisoners for twenty-two (22) hours or more a day without meaningful human contact.”[xiv] Prolonged solitary confinement is the same but for fifteen days or more.[xv] Israeli legislation allows for solitary confinement of prisoners via three main procedures: solitary confinement for and during interrogation,[xvi] solitary confinement as a form of disciplinary punishment,[xvii] and solitary confinement under a procedure called separation.[xviii]
The Israeli Prison Service may hold prisoners in solitary confinement for fourteen non-consecutive days for infractions to the Prison Ordinance.[xix] The IPS holds children and mentally handicap individuals in solitary confinement.[xx] The further alarm with children in solitary confinement is that they are interrogated while separated.[xxi] The IPS justifies holding mentally handicap individuals in solitary confinement as a way of safeguarding them;[xxii] however, reports show that solitary confinement exacerbates both physical and mental handicaps.[xxiii] As such, solitary confinement is a cruel practice that is counterproductive to prisoner rehabilitation,[xxiv] which is a stated goal of the IPS.[xxv]
In addition to solitary confinement, the IPS established “Protected Wards.”[xxvi] [xxvii] [xxviii] These protected wards hold prisoners under solitary confinement type conditions without limitations; however, the IPS does not classify the protected wards as solitary confinement.[xxix] Therefore, the numbers of prisoners held in protected wards are not included in reports on solitary confinement even though the conditions are analogous.[xxx] Because the IPS does not define protective wards as solitary confinement, there is no judicial review.
Children are not exempt from administrative detention. Under the Order Regarding Security Provisions, the Government of Israel regarded a child as anyone under twelve (12) years of age.[xxxi] The order defined a juvenile as a person between the ages twelve (12) and fourteen (14).[xxxii] The order defined a young adult as someone between the ages of fourteen (14) and sixteen (16).[xxxiii] Later, the Government of Israel regarded a minor as someone under the age of sixteen (16).[xxxiv] The military finally, in September 2011, amended the order to define a minor as someone under the age of eighteen (18).[xxxv] [xxxvi] The IPS reported two (2) minors in administrative detention at the end of November 2017.[xxxvii] In the broader prison population, though, Palestinian children face particular challenges and concerns. While minors only account for 2% of the broader prison population, they account for 6% of the solitary confined population.[xxxviii]
[i] Physicians for Human Rights – Israel, Right to Health in the Occupied Palestinian Territory and for Prisoners and Detainees in the Israeli Prison System, Submission to the Universal Periodic Review. Para. 2.4.4. (Jun. 2017), http://cdn4.phr.org.il/wp-content/uploads/2017/07/Submission-to-the-United-Nations-Universal-Periodic-Review.pdf.
[iii] Supra Committee Against Torture, Concluding Observations for the Fifth Periodic Review of Israel, Para. 20.
[v] Supra Right to Health in the Occupied Palestinian Territory and for Prisoners and Detainees in the Israeli Prison System, Para. 2.4.3.
[vi] Israeli Prison Ordinance. Article 56(8), “The following acts are declared to be prison offenses when committed by a prisoner: (8) refusing to eat the food prescribed by the prison diet scale,” http://nolegalfrontiers.org/israeli-domestic-legislation/-prisoners/prisoners019ed2?lang=en.
[vii] Supra Right to Health in the Occupied Palestinian Territory and for Prisoners and Detainees in the Israeli Prison System.
[viii] HCJ 5304/15 Israel Medical Association v. Knesset (Sept. 11, 2016) (Isr.).
The Court reasoned that the law balances detainee’s right to autonomy and state security. Actually, the law violates the rights of the hunger-striking prisoner, potentially legitimizes torture, and gives the State increased power and control over a prisoner’s body and life, in strict violation of medical ethics, http://versa.cardozo.yu.edu/topics/prisoners%E2%80%99-rights.
[ix] International Committee for the Red Cross, Hunger Strikes in Prison: the ICRC’s Position, (Jan. 31, 2013), https://www.icrc.org/en/document/hunger-strikes-prisons-icrc-position.
[x] In multiple cases, the European Court of Human Rights has ruled on force-feeding using Article 3 of the European Convention on Human Rights, which prohibits the use of torture. (Nevmerzhitsky v. Ukraine (2005), Özgül v. Turkey (1998), and Ciorap vs. Moldova (2007)).
[xi] UN, UN Special Rapporteur on OPT calls on Israel to comply with international law on detention (May 16, 2017), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21624&LangID=E.
[xii] Supra Administrative Detainees. Addameer.
[xiii] Supra Politics of Punishment, 2016 at pg 18.
[xiv] United Nations Standard Minimum Treatment for Prisoners (Mandela Rules). Rule 44, https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf.
[xvi] Regulation 5B of Israel’s Prisons Regulations, 5738 - 1978, S.H. 495.
[xvii] Article 58 of the Prisons Ordinance [New Version], 5732 - 1971, and IPS Commission Ordinance No. 04.14.00 “Detention in Isolation.”
[xviii] Article 19B of the Prisons Ordinance [New Version], 5732 - 1971, and IPS Commission Ordinance No. 04.03.00 “Holding Prisoners in Separation.”
[xix] Supra Committee Against Torture, Concluding Observations for the Fifth Periodic Review of Israel, para. 24.
[xxiii] Supra Right to Health in the Occupied Palestinian Territory and for Prisoners and Detainees in the Israeli Prison System, at para. 2.2.5.
[xxiv] Supra Politics of Punishment, 2016, at pg. 11.
[xxv] Israel Prison Services. https://www.gov.il/en/Departments/General/about_prison_service (last visited Feb. 2018).
[xxvi] Supra Politics of Punishment, 2016, at pg 6.
[xxvii] Ministry of Justice, Public Def., Conditions of detention and incarceration IPS Detention Facilities in 2013-2014. (July 2015), http://www.justice.gov.il/Units/SanegoriaZiborit/DohotRishmi/Documents/prisonreport20132014.pdf.
[xxviii] Commission Ordinance No. 03.01.00—Rules on the Operation of Prisons for Criminal Prisoners defines the protected ward as: “1. A ward whose purpose is to house prisoners who, due to their negative behavior or to their being at risk or posing a risk, are separated from the rest of the prisoners, and who do not take part in the various prison activities. 2. Life in the ward shall follow a normal routine, with the prisoners in this ward kept separate from the other prisoners in the other wards. 3. Prisoners in this ward are not defined as prisoners held in isolation.” Because the IPS does not define protected wards as solitary confinement, they are neither included in the statistics nor given to any judicial review.
[xxxi] Order Regarding Security Provisions at Article 1. http://nolegalfrontiers.org/en/military-orders/mil01/73-security-provisions-chapter1-1-7.
[xxxiv] Military Order 1651. Article 136. “’Minor’ – a person under the age of 16; and in regard to a suspect and a defendant, this includes a person who is under the age of 16 on the day the indictment is filed against him.”
[xxxv] Military Order 1676.
[xxxvi] Supra Convention on Rights of the Child, Concluding Observations 2013.
[xxxvii] B’Tselem, Minors in Custody, (Jan. 3, 2018), https://www.btselem.org/statistics/minors_in_custody.
[xxxviii] Supra Politics of Punishment, at pg. 17.