eHalal Germany hereby publishes an interview conducted by Dr. Gabi Weber, a PhD specialist and expert on Palestine, with Dr. Siba Irsheid, LL.M., a lawyer and syndicate lawyer (EuRAG). This interview distinguishes itself fundamentally from most texts published in Germany regarding the situation in Palestine and Israel. It addresses issues that are taboo in most German media. Translated into English by https://de.eHalal.io
An article by Gabi Weber
Our media does not adequately report that Palestinian youth and even children are being tortured. They provide insufficient coverage of the legal situation and fail to highlight that different laws apply to Palestinians and settlers in the same area. Palestinians are often without legal recourse. Is this conscientiously reported to the German public?
Gabi Weber (GW): Ms. Irsheid, as part of your doctoral thesis, “Arrests by the Occupying Power in the Course of Military Occupation: The Palestinian Case. Motivation and Legitimacy,” at the Faculty of Law at the Universidad Nacional de Educación a Distancia (UNED) in Madrid, Spain, you examined violations of the Israeli state over several years. Could you briefly summarize the results for NDS readers?
Dr. Siba Irsheid (SI): My research spanned from early October 2018 to the end of October 2022. One of the key findings was that Israel’s occupation of the Palestinian territories, the West Bank, East Jerusalem, and Gaza Strip, is not in accordance with international law and is therefore unlawful.
From an international law perspective, military occupation can be justified if the occupying state holds the territory of the occupied state to repel a threat until that threat is eliminated. Thus, the military presence is inherently temporary. Since the beginning of the occupation in 1967, Israel has pursued a policy that includes the construction of settlements in the occupied Palestinian territories, the relocation of Israeli citizens to these settlement areas, and the construction of roads exclusively for Israelis, connecting not only these settlements but also linking them with Israeli territory. This calls into question Israel’s stated intention to occupy the Palestinian territories only temporarily. The long duration of the occupation since 1967, settlement policies with the gradual annexation of Palestinian territories by Israel, and the appropriation of natural resources, such as water, weaken Israel’s alleged “security reasons” because they exhibit more colonialist characteristics.
Israel conducts arrests of Palestinians as “self-defense” and as justification to maintain the status quo of military occupation. Punishment in the form of arrests serves exclusively to protect Israeli political interests, such as settlement policies, and aims to suppress the Palestinian people’s desire for self-determination.
Actions considered by Israel as “crimes against security,” listed in Israeli military regulations, mostly involve protests and actions by Palestinians against military occupation, the policy of annexation of Palestinian territories, and the discriminatory treatment of the Palestinian population. To suppress Palestinian protests, Israel employs an aggressive and human rights-violating detention policy.
Legal Complexities in the Israeli-Palestinian Conflict: Jurisdiction, Settlements, and the Role of the Palestinian Authority
GW: Are different laws applied to the occupied Palestinian territories compared to the state of Israel itself? What legal rights govern Israeli settlers living “illegally” on Palestinian land occupied by Israel?
SI: Palestinians in the occupied West Bank are subject to military law, while civilian law applies to Jewish settlers residing there. Israeli military courts officially have the authority to convict anyone committing a crime in the West Bank, including Israeli settlers living there, Israeli citizens residing in Israel, and foreigners. However, in the early 1980s, the Israeli Attorney General decided that Israeli citizens in the West Bank would be tried in regular Israeli courts under Israeli criminal law, even if the offense occurred in the occupied Palestinian territories or involved Palestinian residents. This policy remains in effect, with Israeli military courts exclusively trying Palestinian citizens. Israeli settlers in the West Bank fall under normal Israeli jurisdiction, not military courts.
GW: What role does the Palestinian Authority (PA) play in terms of jurisdiction?
SI: General Palestinian law applies only to the West Bank and Gaza Strip Strip but in a very limited scope. This legal system deals solely with Palestinian affairs and does not have jurisdiction over matters directly or indirectly involving Israeli security forces, military personnel, or Israeli settlers in the West Bank. It also does not apply to Palestinians living in East Jerusalem.
The establishment of the Palestinian Authority following the Oslo Accords in the 1990s theoretically meant a gradual transfer of powers and responsibilities from the Israeli occupying authority to Palestinian authorities. As per the Oslo Accords, the Occupied Palestinian Territories (OPT) were divided into three areas labeled A, B, and C. According to the agreements, the Palestinian Authority would have full control over Area A, while Area C would remain under complete Israeli control. Area B was designated an “autonomous” region, representing Palestinian administration of villages under Israeli security control in practice.
The Complex Reality of the West Bank: Population Distribution and Legal Framework
While Zones A and C are clearly defined in terms of their population—Zone A (two percent) exclusively inhabited by Palestinians and Zone C (approximately 68 percent) occupied by Israeli illegal settlers residing in unauthorized settlements, Zone B (30 percent) represents an undefined grouping between the two zones. It includes Palestinian villages near highways or roads solely accessible to Israeli citizens or in proximity to areas designated by Israel as military exclusion zones.
East Jerusalem holds a unique position, preserved for final negotiations in agreements but de facto annexed to Israel on maps dividing the zones, now under complete Israeli control.
In practice, Israel exercises security control over nearly the entire West Bank, with the Palestinian Authority holding an administrative function, except for a small part of Area A where it manages security, provided no Israeli individuals are involved, and there is no threat to the State of Israel. The Oslo II Agreement in 1995 initially deemed this division provisional for five years, yet it persists today.
Q: What roles do the Israeli military court system and its associated military courts play?
A: The military court system grants the Israeli Security Agency (ISA) officials greater flexibility in interrogating Palestinian prisoners, reducing Palestinians’ legal guarantees to the absolute minimum, well below those of Israeli civil law. According to OM 1651, Chapter C, Article 38, a Palestinian can be held without charge for a total of 90 days exclusively for interrogation purposes, whereas an Israeli citizen accused of a security offense can be held without charge for 64 days. Proceedings against Palestinians in military courts must be concluded 18 months after detention, while the deadline for Israeli detainees in Israeli criminal courts is nine months.
Under international law, applying Israeli civil law to Palestinians in the West Bank is impermissible, akin to illegal annexation. Additionally, laws applied to Palestinians must include rights and safeguards no less favorable than those for Israelis living in settlements; otherwise, the principle of nondiscrimination is violated. As mentioned earlier, Israel continues to apply two legal systems in the West Bank, their application criteria based on the race or national identity of the individuals affected.
Human Rights Concerns in Israel’s Military Court System
According to Article 64(2) of the Fourth Geneva Convention, the occupying power can impose regulations, provisions, or laws (in this case, military orders) on the population of the occupied territory that are essential to enable the occupying power to fulfill its obligations under the Geneva Convention. This is done to ensure the normal administration of the area and the security of both the occupier and its personnel, as well as the property of the occupation forces or the administration of the occupation, including facilities and transportation routes. Article 66 of the Fourth Geneva Convention allows the occupying power to subject the accused to its military courts in case of violations of its imposed penal provisions.
Israel has established military courts for the prosecution and conviction of Palestinians. However, these courts violate universally recognized rights and principles of a fair trial at all stages of the process. In the case of minors, Israel does not adhere to these fundamental theoretical guarantees, and many minors are detained with their trials postponed until they reach adulthood, enabling their prosecution as adults—regardless of their age at the time of the alleged offense. While certain exceptions might be argued for the necessity of specific exemptions in certain situations, they should not be applied in a discriminatory manner: deviations from the rights of Palestinians do not apply to Israelis living in the same territory. Such deviations must not be discriminatory based on race, language, religion, or social origin.
Regarding the incarceration of Palestinian minors, a practice continued by Israel even amid the COVID-19 pandemic, it further exposes existing anti-Palestinian racism, particularly when analyzing behaviors with no other justifiable explanation than the desire to humiliate or inflict unnecessary suffering on minors and their parents. The frequency of such actions, along with their impunity, indicates silent acceptance by Israel.
Israel, annually detaining and prosecuting between 500 and 700 Palestinian children, appears, according to Defense for Children International Palestine, to be the only country systematically incarcerating and prosecuting children through military courts, which provide fewer guarantees for basic rights and fair trial protection. Alarmingly, Palestinian minors are arrested by Israeli military and police forces with increasing frequency, and it is deeply concerning that the detained minors are getting younger.
According to the Israeli organization Yesh Din, more than 90 percent of cases involving acts of violence by Israeli settlers against Palestinians are closed without charges. In contrast, lawyers agree that the overwhelming majority of cases against Palestinians end in convictions.
In summary, Jewish settlers and the Palestinian population in the occupied Palestinian territories live under a regime that makes distinctions in recognizing rights based on national and ethnic identity, thereby violating the principle that no state exercising criminal jurisdiction over individuals should discriminate on the basis of race or national identity.
Disparate Treatment in Israeli Judicial System: A Closer Look
GW: Could you provide examples of this differential treatment?
SI: Yes, of course – unfortunately, there are more than enough! For instance, Palestinians convicted of murder by a military court are effectively sentenced to life imprisonment, while an Israeli convicted of the same crime by a civilian court may serve a maximum of 20 years in prison. Furthermore, according to the Israeli Penal Code, non-Palestinian convicts can be released on parole after serving half of their sentence, whereas Palestinians convicted under military rule can only apply for parole after serving two-thirds of their sentence. In general, Palestinian prisoners are rarely granted early parole.
Criminal responsibility begins at the age of twelve for both Palestinians and Israelis. However, Palestinians are treated as adults in the military court system at the age of 16, while the Israeli justice system sets the age of majority at 18. Although this military regulation was amended on September 27, 2011, establishing the age of majority for Palestinians at 18, it has not been implemented to date. While Israeli laws and police directives stipulate that minors detained in Israel can only be interrogated by police officers specially trained for this task, Palestinian children are interrogated by police or ISA officers in intimidating situations, lacking genuine supervision and marked by abuse.
Language is also a fundamental issue in military courts. Israeli jurisprudence dictates that a prisoner should be interrogated in their own language, and their statement should also be written in that language. However, in practice, the confession or statement of Palestinian prisoners is often drafted in Hebrew by a member of the police forces, compelling the prisoner to sign a statement or confession they do not understand. These “confessions” then become the primary evidence against Palestinian prisoners in Israeli military courts.
Even those accused of a crime routinely have the right to a fair trial denied before military courts. Many Palestinians convicted of “security offenses” serving prison sentences (2,331 individuals as of November 1, 2023) have entered into plea bargains with the Israeli military prosecution to avoid lengthy pretrial detention and sham military trials where the conviction rate against Palestinians is nearly 95 percent.
As Human Rights Watch and other Israeli, Palestinian, and international human rights organizations have noted, discrimination during arrest and imprisonment is just one aspect of the systematic oppression underlying the Israeli authorities’ crimes against humanity, apartheid, and persecution of Palestinians.
Research Reveals Allegations of Torture and Human Rights Violations in Israeli Prisons
GW: What were you able to find in the course of your research on the treatment of Palestinian prisoners in Israeli prisons?
SI: Under the guise of counterterrorism, Israel violates human rights and allows torture, among other things. Palestinian children are also subjected to torture to extract information, confessions, or admissions. If it is morally unacceptable to use torture as a “valid” means at all, the torture of minors is definitely not acceptable. The torture of both minors and adult Palestinian prisoners with mental/physical disabilities is aimed at linking their behavior to broader security concerns.
The fact that Israeli soldiers, police, and security service personnel continue to torture and otherwise mistreat Palestinian prisoners, including minors, with impunity, indicates that the state of Israel silently accepts this discriminatory policy.
GW: These are serious accusations, Mrs. Irsheid. Can you report on the methods of torture and also on the sources you were able to find on this topic?
SI: Yes, you are right; these are indeed serious conclusions. However, this is the result of my four years of research and doctoral work, which I have documented in 344 pages containing 1667 footnotes with citations. These sources are academically validated in my dissertation, which was awarded Summa Cum Laude. Of course, it would be good to read the dissertation, currently only available in Spanish, to understand how I arrived at these results. However, this interview is primarily about a rough summary of my findings.
In fact, my initial concern was that there might not be enough scholarly literature on this topic, and my dismay was significant when I found that all human rights violations by various Israeli governments are well-documented at the highest level.
The torture of Palestinian detainees has even been allowed in some cases by the Supreme Court of Israel (see Israeli Supreme Court, STC HCJ 769/02 The Public Committee Against Torture in Israel et al. v. The Government of Israel et al. (2006)).
Unfortunately, most adult and over 60 percent of minor Palestinian prisoners undergo various torture methods, mainly employed by interrogators to force a confession.
Torture methods employed include threats with firearms, death threats, solitary confinement, fixation in a specific position for several hours, sleep deprivation, threats of harm or imprisonment of family members, denial of access to toilets during interrogation, beatings, and other forms of physical violence. Increasingly, Israeli soldiers and ISA officers use sexual threats to instill fear in children and force them to confess to a specific offense. The sexual assaults by Israeli interrogators on minors take various forms, including genital touching, threats of rape, or sodomy with an object. This induces such fear and terror in the victims that, in many cases, they confess to things that never happened or actions they never committed.
Another technique employed by military interrogators is to pressure minors to betray others in their village. They also attempt to recruit them as regular informants for the army, a practice prohibited, among other things, by Article 44 of the Hague Regulations.
46 percent of minors report being insulted during arrest, transfer to an Israeli prison, and/or during interrogation. The insults are directed at the minor, their mother or sister(s), or their religion. 66 percent of affected minors report undergoing a body search upon arrival at the detention facility, requiring them to undress and bend over.
Human Rights Violations and Political Detentions: Israeli-Palestinian Conflict Under Scrutiny
Many international organizations, such as Amnesty International, Human Rights Watch, Defense Children International-Palestine, as well as Palestinian entities like Addameer and Military Court Watch, and Israeli organizations including B’Tselem, Yesh Din, and HaMoked, document these cases. A wealth of information and statistics can be found on these organizations’ websites. The statistics I’ve used span from 2018 to 2022, but more recent figures are likely available.
Apart from the absence of proper procedures, Israeli authorities have subjected Palestinian prisoners to abuse and torture for decades. Since 2001, over 1,400 complaints about torture, including painful restraints, sleep deprivation, and exposure to extreme temperatures, have been filed with the Israeli Ministry of Justice against the Shin Bet, Israel’s internal security service.
According to the Public Committee Against Torture, an Israeli human rights group, these complaints led to three criminal investigations but no charges. The Military Court Watch reported that, among 22 cases of Palestinian minors detained in 2023, 64% claimed to have been physically abused, with 73% undergoing body searches by the Israeli military during incarceration.
Palestinian human rights groups noted an increase in arrests and worsening conditions for Palestinian prisoners before October 7, 2023, including violent raids, transfers, prisoner isolation, reduced access to water and bread, and fewer family visits. These trends intensified with the onset of the draconian war against the Gaza Strip Strip.
As of November 1, 2023, Israeli authorities held nearly 7,000 Palestinians from the occupied territories (West Bank and Jerusalem) on allegations of security violations, according to the Israeli human rights organization HaMoked. Since the October 7, 2023 attacks in Israel, thousands of Palestinians have been detained, with approximately 240 released. Among those detained are dozens of women and numerous children.
Israeli Practices of Administrative Detention and Militarized Legal Measures in the Occupied Palestinian Territories
The majority of Palestinian prisoners have never been convicted of a crime, including over 2,000 individuals held in administrative detention, where the Israeli military detains a person without charge or trial. Such incarceration can be extended indefinitely based on classified information inaccessible to the detainee. Administrative detainees are held under the assumption that they may commit a crime in the future. Israeli authorities have taken minors, human rights activists, and Palestinian political activists into administrative detention, often spanning many years.
An examination of Military Orders 101 and 1651, forming the basis for these arrests, along with various UN reports and human rights organizations, supports the assertion that Israeli authorities employ arrests as a deterrent to quell resistance. The imprisonment of Palestinian minors and adults thus becomes a method of suppression and racial discrimination.
Processes and convictions in military courts are utilized as instruments of political or racial persecution. Offenses such as membership in illegal associations are criminalized, with the determination of an association being declared illegal dependent on the decision of an Israeli military commander. Another “crime” often cited for draconian measures against Palestinians is the “disruption of public order,” especially stone-throwing.
Palestinians can be detained for participating in an assembly of just ten people on a topic deemed “political” without authorization, while settlers can demonstrate without permission unless the gathering exceeds 50 people, takes place outdoors, and includes “political speeches and declarations.”
These military orders are drafted with significant ambiguity, allowing broad interpretation, constituting a violation of the principle of legality.
Furthermore, the military orders fail to meet the requirements of Article 65 of the Fourth Geneva Convention, stipulating that military orders issued by the occupying power only take effect when published and made known to the population in their language—a requirement that has yet to be fulfilled.
Military Order 101 criminalizes civilian activities related to the exercise of civil and political rights under the term “political incitement,” including participation in gatherings or vigils, especially commemorating the Nakba (Arabic for the catastrophe accompanying the expulsion and killing of hundreds of thousands of Palestinians during the establishment of the Israeli state in 1948, i.e., the Palestinian exodus); actions serving public opinion, such as printing and distributing political material, as well as organizing and participating in protests (e.g., against the illegally erected separation barrier by Israel), even if peaceful.
Military Order 1651 establishes “security provisions” penalizing affiliation with or support of hostile organizations.
It should be noted that regarding the accusation of “membership or support of a hostile organization,” in most cases, presenting sufficient evidence against the detainees is not feasible, leading to their detention based on administrative detention orders. This results in no obligation to present evidence or inform the detainee of the charges against them.
Israel routinely employs administrative detention as a collective punishment, claiming it as a preventive measure to counter future threats. However, reports from the Human Rights Committee, the Committee Against Torture (CAT), as well as Palestinian and Israeli human rights organizations indicate that administrative detention is applied after unsuccessful investigations or the failure to obtain a confession during interrogation.
Discriminatory Practices in the Israeli Legal System Regarding Palestinian Detainees
The military regulations governing the incarceration of Palestinians do not require Israeli authorities to inform detainees about the reasons for their imprisonment. When the military commander claims a threat to national security, Israeli authorities are exempt from providing further information to the prisoner or their lawyer, justifying serious violations of the right to a fair trial (such as denying or delaying legal representation, prohibiting family visits, transferring the prisoner to another facility without notifying their lawyer or family, and imposing solitary confinement, among others).
In summary, Israeli settlers and Palestinians live in the same area but are judged in different courts, under different laws, with varying rights to a proper legal process, resulting in Palestinians being incarcerated without due process. Palestinians have fewer rights and guarantees in court proceedings and receive higher penalties for the same offenses.
Discrimination also extends to the treatment of Palestinian minors. While Israeli civil law protects them from nighttime arrests, ensures the presence of a parent during interrogations, and limits the time minors can be held before consulting a lawyer and appearing before a judge, Israeli authorities routinely arrest Palestinian children at night, interrogate them without a parent present, detain them for extended periods before presenting them to a judge, and hold children aged twelve and older in prolonged pretrial detention.
In 2017, the Association for Civil Rights in Israel reported that authorities held 72 percent of Palestinian minors from the West Bank in custody until the end of proceedings, compared to only 17.9 percent of Israeli minors.
While occupation law allows administrative detention as a temporary and exceptional measure, Israel’s extensive use of administrative detention against the Palestinian population in the decades-long occupation goes far beyond what the law permits.
Q: Which prisons do Palestinian prisoners get taken to?
A: Regarding prisons, only the Ofer Prison operated by the Israeli Prison Service is located in the occupied West Bank. The other 19 prisons are situated within Israeli territory. According to the Israeli Prison Service’s 2017 data, an average of 83 percent of Palestinian prisoners is transferred to and detained in Israel, including 61 percent of incarcerated minors. This transfer of Palestinian prisoners outside the OPT (Occupied Palestinian Territories) is prohibited under Article 76 of the Fourth Geneva Convention and classified as a war crime under Article 8, Section 2, Letter a, Subsection vii of the Rome Statute of the International Criminal Court. Any violation of Article 76 of the Fourth Geneva Convention entails personal criminal responsibility for anyone directly or indirectly involved in the transfer, as per Articles 146 and 147 of the same convention.
Palestinians wishing to visit their family members incarcerated in Israeli prisons must apply for permission from Israeli security services. This entails permission to enter the occupying state and is difficult to obtain, meaning that Palestinian prisoners, unlawfully transferred to prisons within Israel, can hardly receive family visits, even if the detainees are children.
Challenges Faced by Released Palestinians and the Right to Resist Occupation
GW: Can Palestinians released as part of prisoner exchanges safely resume their “old lives,” or do they face the risk of re-incarceration shortly? For instance, what fate awaited the approximately 1,000 Palestinians released in exchange for Israeli soldier Gilad Shalit?
SI: Unfortunately, Palestinians who have been incarcerated once or multiple times may have to return to prison from time to time, especially in cases of administrative detention. However, these are insights gathered from personal accounts, and I am not aware of specific research or scholarly literature on the subject. It would be crucial to conduct research on this topic.
In interviews conducted by Al-Jazeera with released Palestinians last week after the prisoner exchange, a significant majority reported being threatened with re-arrest if they celebrated their release with family or engaged in actions deemed as acts of resistance. They were required to sign documents written in Hebrew, with some reporting physical abuse for refusing to sign. Notably, one released Palestinian claimed that torture in prisons had increased since the start of the Israeli military offensive in Gaza Strip, and prisoners had not received visits from the International Red Cross for a long time.
Lacking scholarly literature, I can only convey what I have seen, heard, or read in various news sources.
GW: Is it true that a population enduring decades of occupation, with basic rights routinely disregarded by the occupying power, has the right to resist? If so, what form should this resistance take, and are there rules that must be followed?
SI: I am not an international law expert, but I can say that answering this question goes beyond a few sentences. As mentioned earlier, international law permits a state to occupy another if its security is threatened. However, this occupation must adhere to specific rules: it must be temporary, the occupying power must not annex territory or build settlements to relocate part of its population. According to humanitarian international law, military regulations and/or military courts must never be used as means to suppress the occupied population or as instruments for political or racial persecution. However, Israel appears to violate these rules. Due to the colonial characteristics of the Israeli occupation, the Palestinian people have the right to self-determination, recognized as ius cogens, or peremptory norm.
The right to self-determination of Palestinians is reflected in numerous resolutions, such as UN General Assembly A/RES/77/208, December 28, 2022, to name one of the recent ones. It “reaffirms the right of the Palestinian people to self-determination, including the right to an independent State of Palestine.”
It states that a people have the right to freely determine their political status, form of government, and economic, social, and cultural development, including freedom from foreign domination. From these statements arise specific consequences regarding the legitimacy of the use of force to assert the right to self-determination.
International law scholar Antonio Cassese writes, “This rule determines that if peoples subjected to colonial rule or foreign occupation, as well as population groups not represented in the government because of their race, are violently denied the right to self-determination, such peoples and groups are legally entitled to resort to armed force to realize their right to self-determination.” The German international law scholar Karl Doehring derives from the right to self-determination as a peremptory norm the conclusion that the struggle for this right is an “exception to the general prohibition of violence.”
Unraveling the Complexities: Armed Struggle, People’s Representation, and Controversies Surrounding Palestinian Human Rights Organizations
It remains a pivotal question: Who is the subject of the armed liberation struggle? General Assembly resolutions assert: The subject is the respective people; the armed struggle of nations is deemed legitimate. Who constitutes the people? Who represents the people? Who is authorized to wage an armed liberation struggle on behalf of the people?
Resistance fighters must direct their armed attacks against the armed forces of occupiers and their local armed collaborators in the occupied territories, but not against civilians in Israel.
GW: For your research, you utilized several Palestinian human rights organizations as sources. Did these include organizations classified by Israel as “terror organizations”?
Yes, this did indeed pose a problem during my four years of research, as shortly after I began my fourth and final year, Israel designated six human rights organizations as terrorist entities. Two of them had already been used as literature in my work: Addameer and Defense for Children International Palestine.
The six NGOs banned by Israel vehemently reject the accusations leveled against them. They claim that this classification serves only to silence critics of the ongoing Israeli military occupation for the past 50 years. On the other hand, the Associated Press argues that the allegations against such organizations are part of Israel’s political strategy to justify the stigmatization of human rights organizations. Lawyer Avigdor Feldman pointed out that this is Israel’s attempt to pursue groups advocating for charges of war crimes against Israel before the International Criminal Court in The Hague (ICC). The ICC has initiated a preliminary examination into Israeli practices in the occupied West Bank and Gaza Strip Strip.
Both my doctoral advisor and I decided to use these sources nonetheless, as I am neither a member nor an employee of any of these organizations. I have simply dedicated myself to uncovering information they provide. Various UN committees have also done this in their reports and continue to do so.
GW: Thank you for the interview, Ms. Irsheid!
