Deeksha Sharma and Tirtharaj Chaudhary are both penultimate year law students at National Law University, Lucknow, India
The Israeli Supreme Court (SC) recently ruled that Palestinian prisoners have no right to physical distancing protection against COVID-19, prima facie ignoring the outbreak in the overcrowded Gilboa Prison.The Palestinian legal advocacy group, Adalah, had petitioned the court to provide all basic health services to security prisoners, the majority of whom are Palestinians.
This court decision violates International Law and the Israeli Basic Law: Human Dignity and Liberty and Equality which, inter alia, consists of the 14 Constitutional Rights in Israel, highlighting the right to life, body, and dignity.
The situation is a prime example of a circumstance in which political interests supersede not only the rule of law as laid down by international law, but also the judicial precedents set by the highest court in Israel.
Situation at Hand
Israeli state officials presented updated statistics on the magnitude of the COVID-19 pandemic inside Israeli Prison System (IPS) detention facilities to the court – 30 IPS employees are infected with COVID-19, 7 prisoners (including 2 security prisoners) are infected with COVID-19, 489 IPS employees are in quarantine, 58 prisoners (including 10 security prisoners) are in quarantine. The IPS has conducted 9,124 COVID-19 tests, some 4,000 of which were for prisoners.
Legal Issues
People deprived of their liberty, such as people in prisons and other places of detention, are more vulnerable to the COVID-19.Sections 1 and 5 of the Basic Rules for the Treatment of Prisoners adopted by the United Nations General Assembly (Resolution 45/111 of 14 December 1990) also lay down the principle that, with the exception of those denied by the inherent nature of imprisonment, prisoners are entitled to all human rights.While Israel’s SC, in 2017, had ruled that Israeli prison facilities must guarantee minimum living space of 4.5m² per prisoner, Israel’s prison services have not yet abided by that. Conditions in Gilboa prison currently make it impossible for inmates to maintain distance, with six prisoners housed in each 22m² cell.However, the SC had previously also ruled that the detainees must be treated humanely, according to the provisions of Israeli and International Law, which is blatantly ignored by the SC presently.
Recently, UNODC, WHO, UNAIDS, and OHCHR issued a joint statement that overcrowding in detention undermines hygiene, health, safety and, human dignity, amidst COVID-19.The UN also affirmed that the failure of a state in taking positive steps towards the prevention of the spread of contagious diseases in prison would amount to a violation of Article 6 (right to life) and Article 9 (right to liberty) of theInternational Covenant on Civil and Political Rights of 1966 (ICCPR), ratified by Israel.
Previously, in Cabal and Pasini Bertran v. Australia, the applicants had argued that their right to health was in ‘‘serious jeopardy’’ by being incarcerated alongside prisoners with infectious diseases, which the court held could raise further health issues.
Israel has released hundreds of Israeli prisoners as a preventive and protective step, deliberately ignoring Palestinian prisoners. This violates the idea of equality, as much as that of human dignity, all of which apply to each prisoner, as mentioned in Darweesh v. Prison Authority, where Justice Cohenreiterated that those in Israeli prisons have the right “to be imprisoned in humanitarian, civilized conditions.” The ruling also violates the ICCPR (Article 7) that “no one shall be subjected to inhuman or degrading treatment or punishment”. To make it even worse, Israel has banned almost all visits to detained persons. However, Justice Zamir in the State of Israel v Kuntar held that such a restriction should not be imposed on security prisoners.
A further note should be taken – the SC has ruled that Palestinians under detention are like “family members” living in the same house and the prison authorities were not obligated to facilitate physical distancing, ultimately succumbing to the administrative powers. This highlights two points here: in the famous Stamka case, the Israeli SC ruled that Israel is required to protect the family members in prison under the terms of international conventions like ICCPR, which have been avoided in this case. The UDHR along with the ICCPR lays down a very specific set of minimum requirements to be fulfilled while holding prisoners, applicable internationally, to ensure their basic human rights even under incarceration.
The legal basis for administrative detention can be found in two Israeli laws, namely, the Emergency Powers (Detention) Law of 1979 and the Incarceration of Unlawful Combatants Law of 2002. The latter is generally used to detain Palestinians from Gaza. Both laws grant broad discretionary power to issue detention orders that can be indefinitely renewed.In order to legally justify administrative detention, Israeli laws authorise the Israeli authorities to use administrative detention as an alternative to criminal prosecution, in particular where there is inadequate proof to prosecute a person or when the authorities do not reveal the evidence available. The SC interprets all laws based on these legislations, giving them prevalence over international laws.Israeli law itself is not necessarily compliant with international human rights law, as was found in A v State of Israel.
Though the judicial review of military decisions started narrowly, it became wider with the judgment of Justice Barak, former president of the Israeli SC, in Schnitzer v Chief Military Cencor. He held that all administrative discretion must be exercised lawfully, in good faith and only after carefully weighing all the human values. He brought trust back to the Israeli judiciary which was lost after Al Ayubi v Minister of Defence, which held that all security decisions would be exerted to narrow or no judicial review.
The military authority is not representative of the people of occupied territories, and is not responsible to the public in the democratic process. For this reason, Article 67 of Geneva Convention directly places an obligation on the occupant’s courts to ensure equal rights to the population. If the military courts refuse to uphold international law and grant it supremacy over the security legislation, they renege on their position as protectors and leave it dependent on a hostile government’s benevolence. Next, according to the restriction clause of the Basic Law, no breach of rights under the same Basic Law is allowed, with the exception of a law relevant to the principles of Israel, enacted for a proper purpose and fair to the degree of that law. This was reiterated by the Israeli SC in Ganor v Attorney General. Justice Barak in Morcus v Minister of Defence held that even during war the Military commander has to abide by the Rule of Law. He cannot discriminate between Arab and Jewish inhabitants. He has to abide by the right to equality pursuant to Article 43 of the Hague Regulations.
Experts claim that, under international humanitarian law, it is illegal for Israel to hold Palestinians from the occupied West Bank, East Jerusalem or Gaza in Israeli prisons, as the law forbids civilians, including hostages and prisoners, from being moved from occupied land to the territories of the occupying power. Nevertheless, all but one of the prisons used by Israel to detain Palestinians is located within Israel. Furthermore, the High Contracting Parties to the Fourth Geneva Convention are expected to fulfil their legal duty under Article 1 to ensure compliance by Israel with the provisions of the Convention and to investigate and prosecute the perpetrators of serious violations of the Convention. Article 76 of the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War specifically lays down the rights of protected persons facing detention by the occupying power.These rights include the freedom to remain in the occupied territory at all periods of incarceration, including, if convicted, while serving prison sentences. Article 76 refers to the duty of the occupying power to provide sufficient medical care and to provide special security for women and children in custody.
Conclusion
Miller v Minister of Defence set that the burden of proving the legality of an action should be shifted by the courts to the security authorities whenever those actions are based on privileged evidence retained by the individual but available to the court, requiring them to exercise strict scrutiny if it actually wants Palestinians to have the Right to Life.
Aharon Barak, in his book, A Judge in a Democracy, elaborated that the desire to maintain public confidence does not involve taking actions that are incompatible with the law or conscience in order to produce the outcome that the public requires. Contrarily, public confidence means making judgments in compliance with the rules and conscience of the court, regardless of the public’s reaction to the particular judgment.At this juncture, it is important that acts arising from a pre-existing conflict between states should not affecthuman rights in a pandemic. Cooperation between nations is required now, more than ever.