Friday, April 3, 2009

downgrading the incarceration conditions of Hamas prisoners


HaMoked's position paper regarding the proposal being drafted by a ministerial committee for downgrading the incarceration conditions of Hamas prisoners held in Israel, as a means of exerting political pressure to advance the cause of Gilad Shalit: the proposal contradicts international and Israeli law, and is therefore inherently illegitimate

On 18 March 2009, Justice Minister Daniel Friedman – who is heading a special ministerial committee tasked with drafting recommendations for downgrading the incarceration conditions of prisoners affiliated with Hamas who are held in Israel – announced that in order "to match [these prisoners'] incarceration conditions to those of Gilad Shalit", prisoners who are associated with Hamas and are being held in Israel will be denied the right to family visits, as well as other rights. The committee was convened in accordance with a government decision, as a response to the failure of negotiations for a prisoner exchange deal between Israel and Hamas.

Due to its concern that the committee may accept the Minister's proposal, HaMoked is publishing a legal position paper which rejects the proposal. The position paper proves that the proposal, in violating Hamas prisoners’ rights to family visits, discriminating between them and prisoners affiliated with other organizations, collectively punishing them and turning them into bargaining chips, is radical, unreasonable and contradicts Israel's obligations under international humanitarian law and Israeli law.

The position paper, which is backed by citations from Israeli and international legal sources, proves, inter alia, that violating these prisoners’ right to visits constitutes a grave infringement on the basic right to family life, both of the prisoner and of his family, as established in the Fourth Geneva Convention and other international conventions, to which Israel is party. The position paper also cautions against the improper discrimination of these prisoners as well as against the imposition of a collective punishment based only on their political affiliation, and emphasizes that this is an inappropriate punitive measure which contradicts Israeli law and international humanitarian law.

Furthermore, the position paper states that Israel's obligation, under the Geneva Conventions, to guarantee the rights of prisoners, is not subject to the principle of reciprocity. Namely, the violation of the Convention's provisions by one party does not obviate the other party's obligations. Violating prisoners' rights in order to exert political pressure is unacceptable in a democratic regime and strictly prohibited.

To view the position paper dated 29 March 2009