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News ID: 1020
Publish Date: 14 June 2014 - 09:06
The question of how Palestinians should engage with the Israeli legal system is complicated for prisoners and detainees whose current and future situations, both individual and collective, are inherently intertwined with that system. Some prisoners reject the system completely such as when Palestinian prisoner Marwan Barghouti notably refused to present a defense to his 2002 charges, maintaining that the trial was illegal and illegitimate, or when 70 detainees in Ofer Prison refused to attend their military hearings in 2012
The question of how Palestinians should engage with the Israeli legal system is complicated for prisoners and detainees whose current and future situations, both individual and collective, are inherently intertwined with that system. Some prisoners reject the system completely such as when Palestinian prisoner Marwan Barghouti notably refused to present a defense to his 2002 charges, maintaining that the trial was illegal and illegitimate, or when 70 detainees in Ofer Prison refused to attend their military hearings in 2012. However, despite the symptoms of illegitimacy in the military court system including a systematic lack of due process (and over 99.7 percent conviction rate), the majority of detainees do attend their hearings and trials, and lawyers from human rights groups like Addameer continue to seek justice in individual cases through the legal system. In addition, prisoners, former prisoners, and human rights Non-Governmental Organizations have attempted to further collective rights by appealing to Israel’s Supreme Court and using international law mechanisms.
However, from the early days of the occupation, in addition to pursuing judicial proceedings or other traditional justice mechanisms, prisoners have engaged in acts of extra-legal resistance. Like civil disobedience, this type of resistance occurs outside of given legal parameters, procedures and institutions, and aims to make the system itself unworkable. Actions have included the development of alternative institutions (such as political, financial and educational systems within the prisons), noncooperation (such as refusing to comply with prison protocols or refusing to work), refusal of family or lawyer visits, refusal of meals and prolonged hunger strikes.
It might be assumed that prison-based resistance is quite literally confined to a particular time and place. However, such acts of resistance, including recent hunger strikes, have had a reverberating effect, diffusing beyond the temporal and spatial boundaries of the physical institutions to influence policy and inspire local, national and international activism. Indeed, prisoners’ resistance has managed to preserve some sense of internal political unity despite external political fracturing, and has also maintained the support of the general population when support for political parties was lacking. Finally, the prisoners’ movement has been able to maintain a spirit of resistance that challenges the perceived complacency of political leaders in recent years.
In this article, I explore the extent to which the 2011-2013 hunger strikes challenged the specific policy of administrative detention at both the individual and collective levels. After providing a contextual background, I discuss how the initial strikes of the detainees sparked broader prison strikes, popular mobilization, civil society advocacy and transnational solidarity actions, leading to some (eventual) individual releases, a verbal (if not actual) Israeli shift on detention policies, as well as international and United Nations condemnation of administrative detention. However, I point out that gains could have been even greater with a more coordinated, sustained strategy. I conclude that confronting the Israeli legal system requires a coordinated, multi-level approach that includes the leadership, agency and participation of detainees and prisoners themselves.

Administrative Detention

The hunger strikes of 2011-2013 have brought increased attention to the issue of administrative detention, defined by B'Tselem as "detention without charge or trial that is authorized by administrative order rather than by judicial decree.” Administrative detainees thus differ from the majority of Palestinian prisoners who are prosecuted and sentenced in the military court system.
According to Israeli Military Order 1591 (passed in 2007 as an amended version of 1970s Military Order 378 and 1988s Military Order 1229) military commanders can detain individuals for a period of six months, which can then be renewed such that 79 percent of detainees have been held for more than six months. As there are no limits on the number of extensions, some have been held in detention for two or more years, while others are re-arrested within a year of their initial release.
The military order applies directly to Palestinians in the West Bank (and was used in Gaza until 2005 when it was replaced by the similar Internment of Unlawful Combatants Law) and, according to Addameer, has been applied to residents of East Jerusalem when the "alleged offense” relates to the West Bank. It is distinct from the Emergency Powers (Detention) Law that applies in Israel.
Administrative detention is legal under international law (see the Fourth Geneva Convention, Article 78), but only in specific circumstances. As echoed by both the International Committee for the Red Cross and the Supreme Court of Israel itself, detention is only to be used when a person is deemed to pose an immediate security risk and only as a preventative (not punitive) measure. Instead, scores of Palestinians are held in detention at any given time (ranging from over 1,000 during the second intifada to approximately 135 presently), as Israel expanded the "security threat” concept to include Palestinians belonging to certain political parties, participating in unarmed resistance, or expressing opposition to the peace process.

Extra-Legal Resistance to Administrative Detention: Hunger Strikes

The use of hunger strikes by Palestinian prisoners is not new; the first major hunger strike took place in Ashqelon Prison in 1970, serving as a foundation for at least 30 documented hunger strikes by Palestinian prisoners over the past four decades. The strikes have directly influenced the gradual realization of certain rights in the prisons, including improved food and better hygiene conditions, as well as access to books, writing materials and eventually radios and televisions; and were also instrumental in establishing negotiation policies between prisoners and the prison administration. The majority of these strikes were collective in nature, either across a prison or across the prison system. As experience with hunger strikes developed, prison leaders took steps to coordinate strikes with other prisons and with political parties, organizations and families on the outside, while physically and mentally preparing themselves and each other for the direct experience of the strike.
The ‘individual’ strikes of 2011 – 2013 differed in that they were undertaken by individuals rather than by the collective and these individuals were administrative detainees, rather than sentenced prisoners. The first individual strike began on 17 December 2011 by Khader Adnan who was arrested nine times since 1999. Adnan wrote in a letter to his wife:
The Israeli occupation has gone to extremes against our people, especially prisoners. I have been humiliated, beaten, and harassed by interrogators for no reason, and thus I swore to God I would fight the policy of administrative detention to which I and hundreds of my fellow prisoners fell prey (emphasis added).
Adnan’s fast continued for 66 days, until 21 February 2012, when a deal was reached for his release on 17 April 2012, four months after his arrest. Two days after the cessation of Adnan’s strike, on 23 February 2012, Hana Shalabi began a hunger strike to protest her six-month detention order. Shalabi had initially been arrested in 2009, then released in 2011 as part of the Hamas-Gilad Shalit prisoner exchange. Her hunger strike continued for 43 days, until a (controversial) deal was reached to release her to Gaza. At the same time, Bilal Diab and Thaer Halaleh began a hunger strike on 27 February 2012 in solidarity with Shalabi, with Diab ending his strike on 15 May after being given a guaranteed release date, and Halaleh ending his 77-day strike on 5 June 2012 upon his release.
Other individuals in administrative detention continued to adopt the hunger strike tactic in subsequent months, including footballer Mahmoud Sarsak (released July 2012), Samer Issawi (intermittent hunger strike between August 2012-April 2013), Jafar Ezzedine (November 2012-February 2013), Tareq Qa'adan (November 2012-February 2013), Akram Rikhawi (May-July 2012, renewed January 2013 when his date of release was not upheld), Yousef Shaaban Yassin (released February 2013), and Ayman Sharawna (deported to Gaza in March 2013).
The individual hunger strikers garnered widespread local support and international attention, and their actions contributed to the decision to launch a collective hunger strike from 17 April – 14 May 2012 with approximately 2,000 of the estimated 4,700 prisoners participating. The general strike ended with an Egypt-brokered agreement in which Israel agreed to allow prison visits from families living in Gaza, release some prisoners from isolation and limit the use of administrative detention, though these agreements have yet to be implemented. The renewed focus on prisoners also proved instrumental in the Palestine Liberation Organization’s July 2013 decision to resume peace talks, based in part on a US-brokered agreement in which Israel agreed to release 104 pre-Oslo prisoners in four phases.

Diffusion of Activism: Local, National and International Dimensions

Historically, Palestinian prison leaders have taken steps to coordinate hunger strikes in conjunction with outside resistance, often through political party mobilization or via the efforts of prisoners’ family members in their camps or villages. Actions took the forms of demonstrations, marches, protests, conferences and solidarity tents.
In the past two years, even when popular resistance was arguably lower than previous periods, the prisoners’ cause, embodied by the hunger strikes, remained a salient, unifying issue. Nearly all major Palestinian cities erected solidarity tents with prisoners during the collective hunger strike of 2012 bringing together members of different political parties to organize around the prisoners’ issue, and 54 percent of Palestinian university students indicated that the strikes inspired them to engage in protests or other activism.1 Inter-party protests and demonstrations erupted around the prisoners issue again in February 2013, sparked by the death of Arafat Jaradat, a prisoner in Israeli custody, combined with the deteriorating health of several individual prisoners on hunger strike.
Some of the local organizing efforts in the past two years have been more formal than in the past, coordinated by both governmental and non-governmental organizations that facilitate communication between prisoners and their families, the Palestinian public and the international community. For example, the Ministry of Prisoners’ and Former Prisoners’ Affairs, established under the Palestinian Authority in 1999, works at both the local and international levels. As Issa Qaraqe, the Minister of Prisoners’ Affairs explained:
The ministry worked a lot with the local community here and with local organizations in mobilizing around the hunger strike[s]… The goal was to make the hunger strike and the prisoners issue the main topic of conversation in the local community. This played a major role in pressuring the Israeli side.2
Civil society organizations have also been involved in supporting prisoners, coordinating communication and engaging in advocacy, with groups like the Palestinian Political Prisoners’ Club and Addameer, the Prisoners Support and Human Rights Association, working closely with the International Committee for the Red Cross and other human rights organizations to support prisoners and raise awareness, both locally and internationally. In addition to formal organizations, support for prisoners is also disseminated through informal networks and individual efforts such as the volunteer-driven Freed Prisoners Association, which helps families communicate with prisoners via "video letters,” and fosters solidarity among families and community members.
On the international level, the hunger strike tactic was instrumental in leveraging attention and media coverage, especially via social media, with images and stories of Khader Adnan and other hunger strikers posted on Facebook, disseminated on Twitter and discussed on blogs. Meanwhile, the hunger strikes garnered responses from more official levels as well, with Richard Falk, United Nations Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, reiterating his condemnation of administrative detention policies most recently in June 2013 and, perhaps most notably, multiple statements by United Nations Secretary General Ban Ki Moon speaking out against administrative detention as well as solitary confinement. For example, on 11 December 2012 in a message to the Conference on Solidarity with Arabs in Israeli Prisons, Moon commented:
Administrative detention should be applied only under clear parameters and in exceptional circumstances, for as short a period as possible and without prejudice to the rights guaranteed to prisoners. Those detained must be allowed to challenge their detention and, in the absence of formal charges, should be released without delay.
He went on to express his, "deep concern for the health and well-being of Palestinian prisoners, including those who had undertaken a hunger strike in the spring.” This top-level attention to the rights of Palestinian prisoners in general and the issue of administrative detention in particular reflects the complementary efforts of civil society advocacy and international solidarity campaigns, combined with direct actions on the ground, particularly protests at United Nations offices in the West Bank. All of these efforts were driven in part by the actions of the hunger strikers themselves, illustrating how the hunger strike tactic and the prisoners issue diffuses through various levels to bring pressure on the state through extra-legal and diverse channels.

Limitations

Despite international attention, the issue of administrative detention continues, remaining one of Israel’s most efficient mechanisms for controlling dissent and opposition in the occupied Palestinian territory. As noted above, although the 2012 collective strike ended with the agreement that Israel would limit the use of detention, the policy continues to be employed.
At the international level, Palestinian officials like Qaraqe and human rights organizations like Addameer and Amnesty International continue to press the issue of administrative detention with the United Nations and the European Union, and have also organized meetings and conferences to better address other prison-related issues such as child prisoners, torture and abuse allegations, health conditions and prisoners’ legal status. However, broader activism regarding detainees, even those on hunger strike, has waned across horizontal solidarity networks and social media, as sustaining interest in the issue has proven difficult, especially as the initial "drama” of the tactic diminished.
Likewise, within the occupied Palestinian territory, numerous activists noted that, despite the demonstrations and solidarity tents, local support for prisoners was weaker than in the past, reflecting a broader shift in activism that has been evident in the post-Oslo period. As one former prisoner and activist explained, "After Oslo, the concept of resistance and the readiness for resistance in the Palestinian context has changed. Before that, the kind of knowledge and mobilization among prisoners and among Palestinians in general was different from today.”3 Indeed, the establishment of the Palestinian Authority following the Oslo Accords resulted in the major political factions focusing more on processes of institution-building and control of dissent, and less on national struggle and resistance, ultimately dampening popular mobilization.
From a prisoner perspective, while most prisoners supported the individual strikers the individualized nature of the strike marked a departure from the collective efforts of the past. Likewise, the demands of the individual strikers, while calling attention to the issue of administrative detention, ultimately focused on securing their own release rather than improving conditions or pushing for more collective rights, resulting in less solidarity among prisoners themselves and thus less sustained mobilization outside the prison. Even when the collective strike took place in 2012, many prisoners still lamented the lack of adequate preparation and organization that had been the norm in the past, especially in regards to coordination of mobilization inside and outside the prisons. It thus proved difficult to sustain the initial momentum around the issue, especially after the end of the collective strike. Indeed, the strike ended just before Nakba Day, a day noted for annual protests and demonstrations, which may have created more synergy between prisoners’ resistance and local mobilization if better coordinated through a broader strategy.

Recommendations & Conclusion

There is no one way to confront the legal system in general or the issue of administrative detention in particular. As the past two years have indicated, challenges to the legal system come through various channels, from individual prisoners to local communities to international organizations exerting pressure in different ways. However, the last two years also reflect how detainees’ actions largely sparked mobilization at other levels, underscoring the importance of incorporating prisoners as leaders and participants in any broader movement.
Over the past two years, individual detainee actions have inspired other prisoners to engage in individual and collective strikes, while these strikes have further motivated solidarity actions at the local level through family and community mobilization. These local actions have complemented the efforts of Non-Governmental Organizations, the Ministry of Prisoners’ Affairs and, increasingly, international organizations by bringing more attention to the issue of administrative detention (and other prison-related grievances) and putting more pressure on the state through official channels. However, as noted above, much of the initial mobilization has waned, especially at the local level, in the absence of a broader strategy.
It is thus important to determine how the recent hunger strikes, and similar actions in the future, can be incorporated into a more comprehensive approach to confronting the legal system. It is not expected that every individual held in administrative detention can or should engage in a hunger strike. Yet, prison-based resistance, which includes a variety of tactics, is integral to the success of any broader strategy. Historically, the national movement has moved in parallel with the Palestinian prisoners’ movement, each working in tandem with the other. The past two years have indicated that prisoners’ issues, and moreover, their actions, can still create a ripple-effect of activism through various levels. Thus, developing a strategy to confront the legal system depends in part on leveraging the influence of detainees themselves and recognizing their role as agents and leaders in extra-legal resistance.
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[1]Surveys were conducted by the author with 150 students between the ages of 18-24 years at university campuses in Jerusalem, Ramallah and Bethlehem in June 2013. The surveys were written, in Arabic, and based on a gradient scale of 1-5.
[2]Interview by author, Bethlehem, 2012.
[3] Interview by author, Bethlehem, 2012.

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