In ruling against hunger strikers, Israel high court shows its fear of security services

Palestinian protesters hold up banners and portraits of a prisoners jailed in Israel,during a rally in solidarity with prisoners in Israeli jails, in the West Bank city of Ramallah, April 30, 2012

APA images

Today, the Israeli Supreme Court rejected an appeal from Bilal Diab and Thaer Halahleh, two Palestinian prisoners who have been on hunger strike for 70 days against their detention without charge or trial and are close to death.

Yet the judges also appeared to send a signal that Israeli authorities should find a way not to let the men die in custody.

The two men had appealed against their so-called “administrative detention.” In “administrative detention,” a judge is shown a secret file supposedly containing “evidence” collected by Israel’s intelligence services.

The detainee, who may be held for years, is never shown the so-called evidence or allowed to challenge it.

Amnesty International among other human rights organizations has condemned this practice and called for it to end. Currently more than 300 Palestinians are held by Israel in “administrative detention.”

Judges defer to all-powerful security services

A key section of the ruling, which is in Hebrew, demonstrates the deference the supreme court pays to Israel’s undemocratic, secretive and unaccountable security services and exposes the myth that Israel highest court is a guarantor of basic rights.

They key concluding passages of the ruling were translated for The Electronic Intifada by Dena Shunra.

Shunra commented, “The supreme court justices aren’t telling the security forces what to do, only pointing out that they could use such-and-such a provision. What we do not see in that verdict is a judiciary that feels it is of equal power to the security forces.”

The judges sheepishly suggest alterations to what they recognize is a procedure – administrative detention – that causes “discomfort,” but they are totally unprepared to impose any decision on Israel’s all-powerful police-state security services.

Here is the final section, paragraphs 25 and 26 of the ruling, (emphasis added):

25. Finally, as to the issue of the hunger strike: as stated above, the issue is being handled at the highest ranks of the state, as we have been told. It is clear to us that the hunger strike cannot constitute a factor in the decision about the validity of an administrative detention in and of its own right, which would be a matter of mixing two unconnected elements.

The administrative detention causes discomfort to any judge, wherever he may be, but it is necessary and therefore cannot be disparaged when the material held against the Appellant is intelligence material, whose exposure would damage either those who provided it or the means by which it was obtained. Indeed, the court is the one who examines the material, and it should also be - as stated above - a voice for the detained.

However, it is possible that there is room to examine again – and this is stated with the greatest caution and without “a bottom line” – ideas that came up in the past, about the possibility that a jurist whom the detainees trust, who receives appropriate security clearance, and could be a senior jurist who formerly worked for the civil service or a retired judge, who would review the material on behalf of the detainees, as their trustee. This could lead the proceedings in the direction of detainee rights without violating security. However, we are aware of the fact that we are not fully cognizant of the full range of consequences, and we are not establishing hard and fast rules.

And as to the detainees currently in question, in light of their condition we direct attention – inferentially and even if this does not formally apply – to Paragraph 7(i) of the Conditional Release Act of 5761-2001, which permits the release of a prisoner “if due to his illness his days are numbered, or if due to his illness his continued stay in imprisonment would materially endanger his life.” This should be examined in the context at hand – of course, with suitable medical foundation.

26. Given the above, the appeals are stricken.