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(Jerusalem) – Israel should immediately charge or release Palestinians detained without charge or trial for prolonged periods and stop denying them and their lawyers access to evidence of their alleged crimes.

On February 22, 2013, an Israeli military court extended the detention without charge of Ja`afar Izz el-Din and Tarek Qa`dan, both held since November 2012 when Israeli forces arrested them in the West Bank. Military courts have refused to allow the men or their lawyers to see the evidence being used to justify their continuing detention. Other detainees, including Samer Issawi and Ayman Sharawna, are due to face a military committee that can order their re-imprisonment on the basis of secret evidence.

These Palestinian detainees have for months been protesting fundamental due process violations by refusing food. Lawyers who have visited them in detention say they are suffering grave health consequences as a result of their prolonged hunger strikes. Families of some of the hunger strikers have told Human Rights Watch that Israeli authorities have refused to allow them to visit the men.

“It is outrageous that Israel has locked these men up for months without either charging them with crimes or allowing them to see the evidence it says it has against them,” said Sarah Leah Whitson, Middle East director at Human Rights Watch.  “The detainees evidently feel they have to put their lives in jeopardy through hunger strikes so that Israel will end these unlawful practices.”

Physicians for Human Rights – Israel, in a statement, said that on February 10 prison authorities transferred Izz el-Din and Qa`dan for medical treatment from a detention facility in Ramle, inside Israel, to Assaf HaRofeh hospital, against their objections. The rights group said that the authorities refused the men’s requests to see an independent physician from the group and shackled their hands and feet to their hospital beds.

Israel forces arrested the men separately in the town of Arrabeh, near Jenin in the northern West Bank, on November 22. Qa`dan and Izz el-Din have been on hunger strike since November 28 to protest their administrative detention, according to Addameer, a Palestinian prisoners’ rights group. The men have accepted occasional injections of nutrients to prevent death.

Qa`dan’s brother, Mo`awiye, and Izz el-Din’s brother, Mohammed, separately told Human Rights Watch that Israeli authorities have since the arrests refused requests by family members to allow them to travel into Israel to visit the men in detention.

Israel’s practice of jailing West Bank Palestinians inside Israel violates the Geneva Conventions, which prohibit an occupying power from detaining members of the occupied population outside the occupied territory.

The Israeli military has detained the two men under a military law providing for “administrative detention,” which allows detention without charge or trial on the basis of evidence that is not accessible either to the detainees or their lawyers. Israeli military administrative detention orders have a duration of one to six months and may be indefinitely renewed.

Jawad Boulus, a lawyer representing Izz el-Din and Qa`dan, told Human Rights Watch that the Israeli military had renewed each man’s detention for three months on February 22. 

Israel’s international legal obligations require it to inform those arrested of the reasons for the arrest at the time, to promptly inform them of any charges against them, and to bring them before a judge, and in criminal cases, to provide a fair and public trial in which the defendant may challenge any witnesses against them. In its concluding observations on Israel in 2010, the United Nations Human Rights Committee, which monitors states’ compliance with the International Covenant on Civil and Political Rights, criticized Israel’s “frequent and extensive use of administrative detention,” and called on Israel to “refrain from using [it]” and to “complete as soon as possible” a review of relevant legislation.

The laws of occupation, which Israel is bound to respect as the occupying power in the West Bank, permit the use of administrative detention only in exceptional circumstances. Article 78 of the Fourth Geneva Convention provides that an occupying power may legitimately order the detention of an individual only “for imperative reasons of security.” The International Committee of the Red Cross, in its “Commentary” to article 78, stresses that the “exceptional character” of such measures “must be preserved.”  Israel is currently holding about 178 Palestinians as “administrative detainees” and has long used this measure to imprison without trial Palestinians it suspects of security offenses.  

“Israel’s regular use of administrative detention, at the least, inverts international law and turns the exception into the norm, at the cost of the fundamental right to due process,” Whitson said.

Issawi, a 33-year-old from East Jerusalem, is also being held under a separate criminal charge but that does not change the abusive nature of his administrative detention, Human Rights Watch said. 

An Israeli court convicted Issawi in 2002 of attempted murder, unlawful weapons possession and military training, and forming an unrecognized organization and sentenced him to 26 years in prison, according to statements by Israeli officials. Israel released Issawi along with hundreds of other Palestinian prisoners in October 2011 in exchange for the release of the Israeli soldier Gilad Shalit, whose prolonged incommunicado detention by Hamas in Gaza since 2006 amounted to cruel and inhuman treatment. Issawi’s release was conditional and included a ban on his travel from East Jerusalem to other parts of the West Bank.

On July 7, Israeli forces arrested Issawi at a checkpoint as he was returning from Beitunia, in the West Bank, to his home in East Jerusalem. On February 21, the magistrate’s court in Jerusalem found that Issawi had violated the military order not to travel to the West Bank and had interfered with a witness by urging a man traveling with him to claim that he had not done so.  Issawi pleaded guilty and was sentenced to eight months in prison, including time served, his lawyer said.

However, Issawi is also simultaneously being detained under a military detention order.  He faces a hearing before an Israeli military committee, scheduled for March 21, which will decide whether to re-impose the remainder of his 26-year jail sentence for violating the conditions of his release. In addition to any specific release conditions set by a military commander, the committee considers that a detainee has violated conditions of release if he commits an offense punishable by three or more months in prison. According to the committee’s procedures, established under Israeli military order 1651, the committee may base its decision on confidential evidence of offenses that the accused and his lawyer are not allowed to see.  

Issawi’s sister, Shireen, told Human Rights Watch that since his arrest in July the family was able to see him only during a court appearance in Jerusalem on December 18, and that he was in a wheelchair as a result of weakness from his hunger strike, which he had begun in August.  Issawi’s mother has alleged that she witnessed security guards at the court hearing assault Issawi when he attempted to greet his relatives.

Israeli authorities have re-arrested 13 other men who were released as part of the Shalit prisoner exchange for allegedly violating the conditions of their release, according to the Israeli newspaper Haaretz. In the case of one of the men, Yusuf Ishteiwi, an Israeli military committee re-imposed the remaining five years of his original sentence on February 6. “They said he had violated the conditions of his release, but he was guilty of we-don’t-know-what in particular, which made it impossible to defend him,” said Boulus, his lawyer.

Another man released as part of the prisoner exchange, Ayman Sharawna, had served 10 years of a 38-year sentence. He was re-arrested in January 2012 and has been on an intermittent hunger strike since August 1, Addameer stated. Physicians for Human Rights – Israel stated that more than a year ago, Sharawna’s lawyers appealed the decision to re-arrest him but that no hearing date has been set.

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