The Condition of Palestinian Women and Children in Israeli Jails

By
Silvia Nicolaou-Garcia
Researcher, Middle East Monitor, MEMO, London

Overview

• The treatment of Palestinian detainees in Israeli prisons does not comply with international human rights or with international humanitarian law standards. This report examines how these international law violations are accentuated in the cases of detained women and children.
  
  
• Due to the fact that women and children are vulnerable subjects, they are often at risk of violence, abuse and denial of their rights at every stage of the criminal justice process.¹ The risks faced by Palestinian children in detention are having a damaging impact on their development and violate established principles of juvenile justice. In the same way, there is a complete disregard of gender sensitive health care and hygiene standards for Palestinian female detainees, sometimes resulting in pregnant women being shackled on their way to hospitals to give birth.²
  
  
• This report distinguishes between two types of violations: those occurring during the trial proceedings, including denial of fair trial and administrative detention, and those occurring during detention and in prisons, sometimes amounting to torture.
  
  
• Before addressing these substantive issues, the report reconsiders Israel’s obligations under international law, since an understanding of the latter has a bearing on the categorisation of the former.

PART 1: ISRAEL'S OBLIGATION UNDER INTERNATIONAL LAW
I. International humanitarian law and international human rights law

Before discussing Israel’s obligation to ensure protection of women and children in criminal proceedings and prisons, the different types of applicable international law applicable must be clarified.

a) The difference between international humanitarian law and international human rights law

International humanitarian law and international human rights law are complementary, since both strive to protect the lives, health and dignity of individuals, albeit from different angles. Humanitarian law applies in situations of armed conflict, whereas human rights protect the individual at all times, in war and peace alike.³ International humanitarian law places duties on all parties to a conflict and human rights, being tailored primarily for peacetime, apply to everyone.

The duty to implement international humanitarian law and international human rights lies first and foremost with States. States are also required to ensure that other States comply with international humanitarian law. Articles 146 and 147 of Geneva Convention IV on the Protection of Civilians in Time of War require the parties “to enact any necessary legislation to provide effective penal sanctions for persons committing grave breaches of the present Convention”. The same provision impose s “an obligation to search for persons alleged to have committed such grave breaches, and shall bring such persons, regardless of nationality, before its own courts”.⁴

b) International human rights law provisions as protectors of women and children.

For the purposes of this report, it is very important to note that the Fourth Geneva Convention (one of the main provisions of international humanitarian law) does not include special instructions on the subject of the rights of minors or women put on trial by an Occupying Power. International human rights law, on the other hand, sets clear guidelines regarding their treatment in criminal proceedings, and the requirement to take their vulnerability into account at all times.⁵ These applicable provisions will be explained in the following two sections.

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