The Petition (H)
The State's Response (H) The Decision (H)On 2 March 2005, the Supreme Court of Israel ordered the Israel Prison Service (IPS) to explain its decision to prevent political prisoners – classified by the IPS as "security" prisoners – from having any physical contact with their children except in cases where there exist "special reasons." There are at least 4,000 political prisoners incarcerated in IPS-run prisons in Israel – almost all of whom are Palestinian citizens of Israel or Palestinians from the 1967 Occupied Palestinian Territories.
Supreme Court Justices Dorit Beinisch, Elyakim Rubinstein and Jonathan Adiel ordered the IPS to reveal the criteria by which it grants permission to political prisoners wishing to have physical contact with their children. The Justices also insisted that the IPS clarify to the Court the "special reasons" for which such permits have been granted previously and explain why "special reasons" are required by the IPS for permits to be granted. Moreover, the Court required the IPS to detail the procedure by which applications for permits are made by prisoners and detainees.
The Supreme Court issued this interim decision in the context of a petition submitted by Adalah on 16 August 2004, requesting that the Court issue an injunction instructing the IPS to allow the children of Palestinian political prisoners to have physical contact with their parents during prison visits. The petition was submitted on behalf of ten children of political prisoners, Ansar al-Sajeen (the Prisoners' Friends Association) and in Adalah’s own name, against the IPS.
In the petition, Adalah Attorney Abeer Baker argued that the IPS's 2002 decision to deny physical contact between children and their incarcerated parents is illegal and should be cancelled, as the IPS is not authorized to introduce such limitations on family visits: the decision infringes the constitutional right to dignity; contradicts and neglects the principle of acting in the best interests of the child; is discriminatory; and constitutes collective punishment. Adalah added that preventing physical contact between a parent and child also violates international human rights treaties ratified by Israel. For instance, in accordance with Article 9(3) of the Convention on the Rights of the Child (CRC), State Parties must respect the right of children separated from one or both of their parents to continue engaging in a personal, direct, and physical relationship with them.
On 15 November 2004, the IPS submitted its initial response to the petition, in which it emphasized that "security" prisoners constitute a threat to the state, but that it would allow them to apply for permits to have physical contact with their children on a case-by-case basis. The IPS claimed that political prisoners have used their children to smuggle in "illicit" objects into the prisons, such as mobile phones, as well as live ammunition and materials used for explosives.
At the March 2005 hearing, Adalah countered that the IPS had focused only on the security threat that these prisoners allegedly pose to the state in order to distract attention away from the grave violations of children's rights it was committing through its decision. Adalah argued that the IPS's response to its security concerns was disproportionate; its arguments in favor of a wide-sweeping ban on physical contact between the children and their incarcerated parents hinged on allegations that, in a very few exceptional cases, children had been used for smuggling prohibited items. Even if the allegations were proved, such exceptions could not be used to justify collective punishment against all children of political prisoners, Adalah stated. Adalah further emphasized that a child's right to dignity is a constitutional right, and as such "special reasons" and the attainment of a permit cannot be required for its realization. Rather, "special reasons" should be provided by the IPS where it seeks to prohibit a visit.
Until May 2002, the IPS allowed children under the age of 10 to have physical contact with their incarcerated parents during the final minutes of the visit. Since then, however, the IPS has stopped the petitioners, and other children of political prisoners, from having any physical contact with their parents in prison, after an alleged attempt by a child to smuggle a proscribed object to his imprisoned father.
Israeli law distinguishes between "security" prisoners and ordinary criminal prisoners, affording different treatment to the two groups. However, according to the law, all prisoners and detainees are entitled to receive family visits: the law does not distinguish between the classification (criminal or "security") of prisoners or detainees over visitation rights. Nonetheless, "security" prisoner visits are conducted with a glass wall separating the prisoners from their children and any other visitors.
H.C. 7585/04, Hakeem Kana'ni, et. al. v. The Israel Prison Service (case pending).