Based on hollow procedural claims, the HCJ summarily dismissed petition against violation of basic rights and minimal living conditions of Palestinian “security” prisoners

On October 25, 2023, the Association for Civil Rights in Israel, HaMoked, Adalah, Physicians for Human Rights-Israel, and the Public Committee Against Torture in Israel filed an urgent petition to Israel’s High Court of Justice (HCJ) to stop the violation of the basic rights of Palestinian “security” prisoners who had been arrested and tried before the war. The organizations argued that the emergency policy in this matter had been established contrary to the Prison Ordinance, and causes severe and ongoing harm to the health and minimal living conditions of the prisoners, which the State is obligated to provide.

The petition challenged the range of measures in the cell blocks of security prisoners, which were implemented with complete opaqueness and amount to cruel punishment. Some of the measures result in a dangerous situation whereby these prisoners are completely vulnerable to abuse in the prisons, because they no longer have any contact with the outside world – as family visits have been halted, and prisoners are no longer allowed to speak with their attorneys over the telephone (and imprisoned minors are no longer allowed to talk with their families over the phone). In addition, visits by attorneys have all but stopped, and the ICRC can no longer visit the prisoners.

Other measure have led to a severe deterioration in the conditions of imprisonment: The electricity supply has been disconnected for most hours of each day; personal items have been removed from the cells and prisoners have hardly been taken out of their cells and must remain there, idle, in the dark and in excessive overcrowding for almost 24 hours a day. The water supply has also been repeatedly disconnected for long periods throughout each day, causing bad smell in the cells and a drastic reduction in prisoners’ ability to shower. Prisoners’ nutrition has also suffered, as access to the canteen has been barred and the food supplied to the prisoners is meager and unvaried. In addition, and despite the poor conditions, access to adequate medical care has been made effectively impossible, and prisoners have suffered from deterioration in their health condition; those who were subjected to violence by prison guards were left bleeding and injured in their cells.   

On the day the petition was filed, the HCJ hastened to reject the request for interim orders and an urgent hearing, and on October 30, 2023, it also rejected the petitioners’ request to revisit these decisions. On November 23, 2023, the HCJ dismissed the petition out of hand, without a hearing, and without consideration of its arguments. The judgment, written by Justice Kabub, listed several threshold claims justifying such a dismissal, including the multiplicity of issues in the petition, failure to exhaust remedies; the existence of alternative remedy by submitting individual prisoner petitions  and the absence of individual petitioners and of direct testimonies of prisoners in the framework of the petition (although the Court did note the petitioners concern that prisoners taking formal action would be exposed to mistreatment). Justice Kabub ruled that the petition “suffers from many of the flaws noted above”, as well as factual flaws.

Justice Kabub clarified that the multiplicity of issues in the petition set it apart from other general petitions without a concrete petitioner and dealing with all prison facilities and all of the inmate population, which the Court agreed to review, because they had dealt with a single issue. The judgment also ruled that the petition is to be dismissed also on its merits, finding that the Prison Command “does not deprive the prisoners of their vested rights but only limited their conditions to the minimal threshold required by law”. In this context, the Justice noted that he was persuaded by the intelligence opinion he was presented with, whereby the downgrading of conditions was necessary due to the “presumption of threat” attributed to the security prisoners, “which requires a different attitude”.

In this judgment, like others issued recently, it seems the HCJ prefers to turn a blind eye to the situation in prisons and lets the IPS treat the prisoners as it chooses. Especially jarring is the HCJ’s ruling that the proper course of action is filing individual petitions against the IPS, in disregard of the fact that prisoners are now so isolated and vulnerable such that filing complaints and individual petitions is extremely difficult if not downright impossible.