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Resolution adopted unanimously by the Governing Council
at its 173rd session (Geneva, 3 October 2003)

The Governing Council of the Inter-Parliamentary Union,

Having before it the case of Mr. Marwan Barghouti, an incumbent member of the Palestinian Legislative Council in Ramallah, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the "Procedure for the examination and treatment, by the Inter-Parliamentary Union, of communications concerning violations of human rights of parliamentarians",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/173/11(b)-R.1), which contains a detailed outline of the case,

Taking account of letters from the Speaker of the Knesset dated 14 and 29 July 2003,

Considering that on 15 April 2002 Israeli Defence Forces arrested in Ramallah Mr. Marwan Barghouti, a member of the Palestinian Legislative Council, widely known, according to the sources, for advocating a just and lasting peace in the Middle East; according to the Speaker of the Knesset, his arrest was based on an arrest warrant issued on 23 September 2001 by the Magistrate's Court of Jerusalem; Mr. Barghouti was transferred to the "Russian compound" detention centre in Jerusalem and an 18-day detention warrant was issued for him; owing in particular to Military Order 1500 of 5 April 2002, which authorises the arrest and incommunicado detention of Palestinians for 18 days if they are suspected of taking military action or committing a crime against Israel, Mr. Barghouti was held for eight days without being brought before a judge; he was reportedly brought before a military judge for the first time on 26 April 2002 in the "Russian compound" itself, on which occasion he complained about the torture he suffered and rejected the jurisdiction of the court and the right of the Israeli forces to arrest him; the judge prolonged Mr. Barghouti's detention for a further 25 days and it has since been continuously extended,

Considering that, according to the Speaker of the Knesset, Mr. Barghouti's arrest is based on information received by the Israeli security authorities that Mr. Barghouti was not only "directly involved in the planning and carrying out of terrorist activities against Israeli citizens" but was also "the acknowledged leader of the 'Tanzim', the military arm of Fatah", an organisation which had "openly associated itself with terrorist acts carried out against Israel"; Mr. Barghouti was suspected of being an accessory to murder and attempted murder, of unlawful possession of weapons and of unlawful military training; the Speaker affirmed that since Mr. Barghouti was an active member of a banned organisation, nothing in his arrest, transfer or investigation was contrary to accepted norms of international law,

Considering that the following information was provided in June 2002 by Mr. Barghouti's defence counsel regarding the conditions of Mr. Barghouti's pre-trial detention:

  • During the first two weeks, Mr. Barghouti was interrogated 20 hours a day. When his counsel met him for the first time on 18 April, he was exhausted and unfocussed and told him that during interrogation he remained seated on a small plastic chair in the same position, with his hands tied behind his back and sometimes blindfolded. The lawyer stated that Mr. Barghouti was not subjected to the "Shabach" position, as initially alleged;

  • During the first three weeks of his detention, Mr. Barghouti lost seven kilograms. Moreover, he was bleeding for two weeks owing to an operation he had undergone before being arrested. Because of the detention, the operation was a failure. His cell reportedly measured 2 x 2 metres, had no windows, only a ventilation hole in the ceiling, and the light was permanently left on. Mr. Barghouti was reportedly not entitled to radio, TV, newspapers or books. The Red Cross was authorised to see him only after 40 days of detention. Mr. Barghouti was held in isolation and not allowed to see his family. A request from his wife to meet him in her capacity as a lawyer was rejected;

  • A petition to lift the detention order was rejected; in secret hearings the High Court also rejected as unfounded two petitions to stop the ill-treatment, in particular the sleep deprivation,

Considering that, in his letter of 6 April 2003, the Speaker of the Knesset stated that Mr. Barghouti was being held in a wing of Ayalon Prison which was separate from the main wing for security reasons; the separation from the other prisoners was reviewed periodically by the competent authorities in accordance with the Prisons Ordinance; Mr. Barghouti was under continuous medical supervision and all his complaints regarding his state of health had been duly examined; when necessary, the appropriate medical treatment had been and would be given; noting that, according to information provided by the source shortly before the Committee's 102nd session (June 2003), Mr. Barghouti is at present held in the "Ramlé" detention and isolation centre; he is reportedly still kept in isolation in a 3-square-metre cell in a second basement lacking any basic hygiene: the cell is humid, infested with mosquitoes and rats, the lavatory consists of a hole in the ground, there is no window and only a small opening in the cell door (5 x 15 cm) permits ventilation; Mr. Barghouti is reportedly allowed in the closed prison courtyard for one hour a day, with his hands and feet shackled; he reportedly suffers from a lung disease and respiratory difficulties due to the cold and damp; the prison authorities reportedly deny him the necessary medical care and it was apparently only owing to international protests that he was granted one short medical visit,

Considering that, in response to the allegation that Mr. Barghouti is denied family visits and only has restricted access to his counsel, the Speaker of the Knesset replied that Mr. Barghouti is a security prisoner and, as such, subject to the relevant regulations; he is able to meet his counsel in accordance with the prison regulations and has in fact met freely with his attorneys since the beginning of the legal proceedings against him; as a rule, security prisoners are allowed to receive visits from close family members unless there are grounds for preventing such visits; at this stage, security considerations prevent Mr. Barghouti from receiving family visits and this decision is subject to review from time to time,

Considering that Mr. Barghouti stands accused of premeditated murder, being accessory to murder, incitement to murder, attempted murder, conspiracy to commit a crime, activity in a terrorist organisation and membership in a terrorist organisation; trial proceedings started before the District Court of Tel Aviv and Jaffa on 19 January 2003, and the latest hearing took place on 29 September 2003, according to trial observer reports,

Considering that Mr. Barghouti rejects the competence of the Israeli authorities to try him, essentially on the strength of Articles 13 and 17 of the Interim Agreement of September 1995 (Oslo II), Article 1 of its Annex 3, on the strength of the parliamentary immunity he enjoys as a member of the PLC and on the strength of Article 49 of the Fourth Geneva Convention, which prohibits, regardless of their grounds, individual or mass forcible transfers from occupied territory to the territory of the Occupying Power; international law experts have pointed out that, although Israel has not ratified the Fourth Geneva Convention, the United Nations Security Council has recalled in several resolutions (237 of 14 June 1967, 446 of 29 March 1979, 681 of 20 December 1990) the applicability of the Convention to the Occupied Territories; resolution 641 of 30 August 1989, which was confirmed by resolution 694 of 24 May 1991, specifies explicitly that the Geneva Convention is applicable to the territories occupied by Israel since 1967, including Jerusalem; considering that, according to the Speaker of the Knesset, Tel Aviv District Court, sitting in a panel of three judges, held in a long and comprehensive judgment that there was no basis for such arguments; in particular, it could find no basis, either in domestic or in international law, for parliamentary immunity to provide impunity in respect of crimes such as murder and the acts of terror with which Mr. Barghouti was charged,

Noting that, with respect to the rejection of Mr. Barghouti's bail application, the Speaker stated that Tel Aviv District Court, in its decision of 2 January 2003, had based its ruling on the evidence presented to it which substantiated the facts alleged in the indictment and in the light of the serious offences of which Mr. Barghouti is charged,

Considering that Mr. Barghouti's defence counsel withdrew, at Mr. Barghouti's request, after the rejection of his bail application in order "not to be an accomplice to this travesty of justice"; the Court then appointed a lawyer who refused to plead, stating that the defendant refused to cooperate with the Israeli judicial authorities; the President of the Court has nevertheless imposed the presence of an officially appointed counsel,

Considering that, according to trial observer reports, none of the prosecution witnesses, all Palestinians, has so far testified against Mr. Barghouti and provided any evidence of his involvement in the acts of which he is accused; on the contrary, some of them contest their "confessions" as having been obtained under duress, others state that they were forced to sign documents in Hebrew which they did not understand, and others take the opportunity to denounce Israeli politics in the occupied territories; moreover, according to one of the sources, on 6 April 2003 the Court reportedly accepted as Mr. Barghouti's testimony a report written by the Israeli intelligence services which Mr. Barghouti had refused to sign; considering also that, at the first hearings, the public present in the courtroom displayed a hostile attitude, calling Mr. Barghouti "murderer, terrorist"; and noting in this respect that public officials, in particular the legal counsellor of the Israeli Government, Mr. Elyakim Rubinstein, reportedly described Mr. Barghouti publicly as "chief terrorist",

Considering that, in view of the widely diverging views of the authorities and the sources regarding Mr. Barghouti's situation, in particular his conditions of detention, the Committee decided to carry out an on-site mission and sought the agreement of the Israeli authorities; on 9 July 2003 the Speaker stated that "unfortunately, an official visit by the representatives of the Committee to the accused man in prison would be interpreted as an enquiry committee into the conditions of imprisonment and we cannot therefore accede to this request"; he reiterated this position on 29 July 2003,

Bearing in mind that Israel is a party to the International Covenant on Civil and Political Rights and to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and is thus bound to respect the rights and liberties therein guaranteed, in particular the right not to be subjected to torture and ill-treatment, the right to freedom from arbitrary arrest and detention, and the right to judicial guarantees ensuring fair trial; referring in this respect to the concluding observations of the Human Rights Committee on Israel's second periodic report of 21 August 2003 (CCPR/CO/78/ISR) and its concerns about the use of prolonged detention without any access to a lawyer or other outside persons of and certain interrogation techniques,

  1. Thanks the Speaker of the Knesset for the information he provided and for his cooperation;

  2. Expresses deep concern at the consistent allegations regarding Mr. Barghouti's conditions of detention and their possible effects on his health; regrets that the proposed mission could not be carried out as the Israeli authorities refused to let it meet Mr. Barghouti; therefore considers that it lacks any data such as might dispel its concerns;

  3. Stresses that it is a well-established international doctrine that human rights, including the right to humane conditions of detention and the right to personal and physical integrity, are a matter of international concern, and that ensuring their respect is a duty incumbent upon the international community; points out that this is borne out by, inter alia, the recent adoption by the United Nations General Assembly of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which prescribes for detention centres a mandatory international visiting body;

  4. Recalls that, in its judgment in the "Public Committee against Torture in Israel v. the State of Israel" case, the Supreme Court of Israel ruled that ";if the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or breaking him, it shall not fall within the scope of a fair and reasonable investigation";

  5. Would appreciate receiving, in Hebrew if no English translation is available, a copy of the High Court judgment in which the Court declares Mr. Barghouti's complaint of ill-treatment and sleep deprivation unfounded;

  6. Notes that, while the Speaker kindly offered to convey, in Hebrew, the comprehensive judgment delivered by Tel Aviv District Court on the question of the preliminary arguments, in particular the competence of the court to judge Mr. Barghouti, it still lacks information as to the legal grounds invoked by the Court in support of its jurisdiction; would appreciate receiving a summary of those grounds;

  7. Calls on the Knesset, as a guardian of human rights, to ensure that Mr. Barghouti's human rights regarding detention and trial are fully respected;

  8. Notes that, in his letter of 9 July 2003, the Speaker offered to arrange for the Committee's delegation which was to carry out the mission to attend a trial hearing; considers this indeed important, and decides to send a trial observer to the next court hearings; requests the Secretary General to take the necessary measures to this end;

  9. Requests the Secretary General to convey this resolution to the Speaker of the Knesset and the sources;

  10. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session to be held on the occasion of the 110th Assembly.

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