Gaza - Alray Media
by Julie Webb-Pullman
Palestinian Authority Civil Affairs Minister Hussein al-Sheikh’s announcement on March 1st that an independent foreign doctor will investigate the death of Arafat Jaradat in Israeli custody is a grossly insufficient response to the issues raised by Jaradat’s death, and should be roundly rejected as such.
There are several reasons for this – some 203 of them, in fact. That is the number of Palestinians to have died in Israeli custody since 1967.
To investigate one death out of 203 is clearly not going to address the systemic issues resulting in these hundreds of deaths and thousands who have suffered, of which Jaradat’s death following torture, and the current hunger-strikers on death’s door, are but the most recent examples.
It should need no repeating that torture is specifically prohibited in international law by means of the Convention Against Torture (CAT), as well as Article 7 of the International Covenant of Civil and Political Rights (ICCPR), and that there is NO DEROGATION possible from this prohibition – torture is never acceptable in international law, under any circumstances.
The prohibition on torture is ABSOLUTE, regardless of any domestic Israeli law that ‘permits’ it through ‘necessity’.
Torture not the only issue
A limited investigation by a foreign doctor cannot, and will not, address the larger legal and humanitarian issues facing the thousands of Palestinians who have, and continue to, languish in Israeli jails. Issues such as arbitrary detention and lack of due process, torture and other degrading and inhumane interrogation techniques, and conditions of confinement that fail to meet minimal international standards, such as dietary adequacy, quality of health care, family visits, and other humanitarian concerns all require exposure to international scrutiny – and action.
A limited investigation such as that proposed by the Palestinian Authority may, however, shed some light on the medical aspects of the particular circumstances of Jaradat’s death, which most certainly need to be identified and exposed such that the potential for their recurrence is minimised – but that alone is not enough.
Medical aspects of Jaradat’s death
Israeli website Ynetnews.com reported on 24 February that according to Shin Bet, “… during interrogation, he was examined several times by a doctor who detected no health problems.”
Medical aspects of Jaradat’s last six days of life that must therefore be determined include:
- when and where Arafat Jaradat was seen by medical personnel during his entire period in Israeli custody,
- by whom, and what their qualifications are;
- whether the full physical and psychological examination of him ordered by the Israeli military judge on Thursday 21 February was carried out;
- all diagnostic procedures and tests performed, and their results;
- all treatment plans;
- to whom the results of all examinations, procedures, and tests, and treatment plans were communicated, and in what form;
- in particular whether any results were presented to the Israeli Security Agency (ISA) and the court, as required by the judge;
- if the full physical and psychological examinations ordered by the judge were not carried out, why they were not;
- when, where, and what medical treatment Jaradat received while in custody, in accordance with the outcome of examinations, diagnostic procedures and tests, and treatment plans identified above;
- by whom such treatment was provided, including resuscitation attempts;
- given that Arafat Jaradat died while in Israeli custody, and according to the autopsy report following severe torture, a finding as to whether Israeli medical personnel and the Israeli prison services fulfilled their obligations to the patient Arafat Jaradat, in accordance with the professional standards reasonably expected of them by the public and by their peers;
- disciplinary action against anyone found to have contributed to Jaradat’s death through medical or other negligence;
- identification and implementation of adequate systems to ensure such an event does not recur in Israeli jails.
Relation to Human Rights
The UN Human Rights Committee has stated specifically that the right to health of detainees comes under the right to humane treatment in the ICCPR, [1] and the related provision against torture (Article 7) has also been used by the Human Rights Committee to address questions of prison medical care. [2]
“Appropriate and timely medical care must be available to all detainees,’’ they said in 2003. [3]
The most cursory review of applications to the United Nations Human Rights Committee (UNHRC, elevated to the stature of the United Nations Human Rights Council in 2006) shows that when medical services have been found to constitute cruel, inhuman or degrading treatment, they have generally occurred in a situation following beatings or torture.
For example, in several cases against Uruguay in the 1980s the UNHRC cited physical abuse or torture, as well as the failure of prison authorities to provide subsequent medical assistance, when making findings of violations of the ICCPR.[4]
Other jurisdictions than the UN have made similar citations - all of the African Commission cases in which denial of medical care was cited in a finding of cruel, inhuman or degrading treatment occurred in the context of physical abuse or beatings of persons in detention, [5] as did many of those of the Inter-American Court of Human Rights, where ‘‘very deficient’’ [6] or ‘‘inadequate or unresponsive’’ [7] medical attention, along with deliberate physical abuse, was cited as contributing to a finding of cruel, inhuman or degrading treatment.
In addition to the torture cases, the other category of applications that generally cite inadequate medical care are those in which health services are but one of a list of prison conditions that are cumulatively assessed to constitute inhumane or degrading treatment [8] – and that is precisely the situation of Palestinian detainees, and why one doctor looking only at the circumstances of Jaradat’s death, is a pitifully inadequate response.
List of Prison Conditions
To the 203 deaths must be added the 750+ complaints of torture and ill-treatment made since 2001 against the Israeli Security Agency (ISA) – none of which has resulted in a criminal investigation, according to The Palestinian Human Rights Organisations Council (PHROC), Adalah Public Committee Against Torture in Israel, and Physicians for Human Rights-Israel. [9]
Now add the thousands since 1948 who have been ‘administratively detained’ – without charge, without being presented with the evidence against them, and without ever being given the opportunity to defend themselves in a fair and impartial trial – and whose detention is extended time and time again, or who are released only to be re-detained. The 10,000 women who have been detained since 1948. The 2,000+ 16-18 year olds detained in 2012 alone, and the 300+ 14-16 year olds.
Next, those thrown into solitary confinement for years on end – over twelve years in some cases – for no justifiable reason. Witness today Dirar Abu Sisi, Gaza power plant director and engineer abducted from a train in the Ukraine, ‘rendered’ to Israel in a coffin in contravention of international law and any minimal standard of human decency, and held for the two years since in solitary confinement, such that his ability to use language has all but disappeared.
Throw rotten food into the mix, no access to work, limited access to educational and recreational opportunities, exposure to extremes of temperature without appropriate clothing and bedding, little or no opportunity to access items from the canteen, and the with-holding of family visits for seven years and more – and when they do occur, the subjection of family members to humiliating strip-searches, and fore-shortened visits.
Top it off with regular night raids on cells accompanied by physical and verbal assaults, strip-searches, the setting of dogs onto detainees, and the arbitrary confiscation of personal belongings.
Many of these issues formed part of the deal made between Israeli prisons authorities and the Higher Committee for Detainees to end the mass hunger strike of 2012 – a deal Israel immediately reneged on, and which it continues to breach and to scorn.
Calls for an international investigation
There has been a litany of calls for an independent investigation into the circumstances of Arafat Jaradat’s death, with some including the conditions of Palestinian detainees in Israeli jails, and/or the manner of their detention.
Robert Serry, UN Special Coordinator for the Middle East Peace Process, said after the release of the autopsy results, “The United Nations expects the autopsy to be followed by an independent and transparent investigation into the circumstances of Mr. Jaradat’s death, the results of which should be made public as soon as possible.” [10]
The same statement also addressed one of ‘the list’ items, saying, “… those held in administrative detention without charge should be charged and face trial with judicial guarantees in accordance with international standards, or promptly released.”
14 Palestinian human rights groups demanded attention to ‘the list’ [11] while the Non-Aligned Movement of the UN Security Council also called for an “independent and impartial investigation” and “full respect of international human rights and humanitarian law obligations towards all Palestinian prisoners and detainees being held by Israel” - but its attempt to obtain a clear statement from the Security Council on the rights of Palestinian detainees was blocked by the United States. [12]
Israeli impunity
Whilst Israel has ratified the main human rights conventions, it is not a party to any of the Optional Protocols other than Children in Armed Conflicts, nor has it accepted the jurisdiction of any of the treaty body committees, which means that relevant committees cannot receive or act on complaints or claims against Israel.
Even where Israel has ratified conventions, it has made important reservations, rendering itself virtually immune from almost any action against it.
For example, in relation to the Geneva Convention, Israel is a party to the 1949 Geneva Conventions, but not to the first and second 1977 Additional Protocols. As The Rule of Law in Armed Conflicts (RULAC) project points out:
“Although Israel has signed the 1998 Rome Statute, on 28 August 2002 the Secretary-General received from the Government of Israel, the following communication: "...in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, [...] Israel does not intend to become a party to the treaty. Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000. Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty." [13]
They also note that Israel has domestically declared a State of Emergency since 1948. A notification under Article 4(3) of the ICCPR (Derogations) was made on 3 October 1991, after the ratification of the Convention, in which Israel derogates from its obligations under Article 9 of the ICCPR, ie removes itself from the application of Article 9.
In relation to the Convention Against Torture, Israel made two reservations, firstly, that it does not recognise the competence of the Committee provided for in Article 20, which would enable the UN Committee to examine “well-founded indications that torture is being systematically practised in the territory of a State Party” and to “designate one or more of its members to make a confidential inquiry and to report to the Committee urgently” and secondly, it does not consider itself bound by paragraph 1 of Article 30, which would require it to submit to arbitration, and if agreement was not forthcoming, for the dispute to be referred to the International Criminal Court. [14]
This leaves only the ICCPR as an avenue of recourse within the United Nations system – but Israel has not signed the First Optional Protocol, thus complaints against Israel cannot be received by the Committee.
One need not look further than the United States and its power of veto to discover how Israel is enabled to continue to be a member state of the United Nations, claiming all of the benefits of protection for itself under international law, while accepting none of the accompanying obligations and responsibilities towards others – particularly Palestinians.
Will an independent international investigation achieve anything?
The most we can hope for is that the circumstances of Arafat Jaradat’s death will be exposed to the international community, and will serve as a catalyst, as did the death in South African custody of Steve Biko in alerting the world to the atrocities being committed by the apartheid state of South Africa and ultimately leading to its downfall.
The rogue and apartheid state of Israel is equally in need of the disapprobation and condemnation of the international community for its chronic and extreme abuses of Palestinians and Palestinian detainees, for its daily practices of torture, and cruel, inhuman and degrading treatment of Palestinian detainees and their families, and for its blatant disregard of international laws, norms and minimal standards of civilised behaviour.
The world must act, and act now, to rein in this rogue state and restore Palestinians' rights.
Notes
[1] Cabal and Pasini v. Australia (7 August 2003) UN Doc CCPR/C/78/D/1020/2002) para. 7.7.
[2] Womah Mukong v. Cameroon (Communication No. 458/1991) UN Doc CCPR/C/51/D/458/1991.
[3] UN Doc CCPR/CO/78/PRT (5 July 2003) para 11
[4] Setelich/Sendic v. Uruguay (28 October 1981) UN Doc A/37/40 para 20. See also Vasilskis v. Uruguay (31March 1983) UN Doc A/38/40; Viana v. Uruguay (29 March 1984) UN Doc A/39/40
[5] Constitutional Rights Project and Civil Liberties Organisation v. Nigeria (1999) African Commission on Human and Peoples’ Rights Comm Nos 143/95, 150/96 para 5; Krishna Achuthan (On behalf of Aleke Banda), Amnesty International (On behalf of Orton and Vera Chirwa), Amnesty International (On behalf of Orton and Vera Chirwa v. Malawi (1994) African Commission on Human and Peoples’ Rights Comm Nos. 64/92, 68/92, 78/92 para 7.
[6] Cantoral Benavides Case (Judgment) Inter-America Court of Human Rights Ser C No. 69 (18 August 2000) para 85.
[7] Caesar v. Trinidad and Tobago (Judgment) Inter-American Court of Human Rights Ser. C (11 March 2005) para 50.
[8] Lines, R The Right to Health of Prisoners in International Human Rights Law International Journal of Prisoner Health, March 2008; 4(1): p20
[11] See note [9]
[12] http://alray.ps/en//index.php?act=post&id=90
[13] http://www.geneva-academy.ch/RULAC/international_treaties.php?id_state=113
[14] https://www.un.org/documents/ga/res/39/a39r046.htm CAT Article 20 (1) and (2)
