Israel Forced to Release Three Detainees in Gaza After Pullout

Dispite Geneva convention, Israel will only release those in administrative detention.

Yuval Yoaz, Haaretz Correspondent
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Yuval Yoaz, Haaretz Correspondent

Following the end of military rule in Gaza, Israel was forced to release three of the five Gaza Strip residents it was holding under administrative detention.

The three detainees - Salah Mahmoud Khalil Ziam, Jamal Abu-Zino and a third unnamed person - were released on Tuesday by order of the military court at Ofer Camp. The other two administrative detainees, Riyadh Ayad and his cousin, Hasan Ayad, were declared "illegal combatants" on Monday by Chief of Staff Dan Halutz and were transferred to Israel's civilian judicial system.

On Monday, GOC Southern Command Dan Harel signed an order revoking the Israeli military rule imposed in the Gaza Strip in 1967. Article 77 of the Fourth Geneva convention obligates the occupying power that withdraws from a given territory to transfer all incarcerated residents of that territory to the entity that receives control of the area. Yet despite Israel's obligation under this clause, it does not plan to transfer to the PA the "ordinary" prisoners and detainees who are Gaza residents.

A meeting on this matter took place two months ago, attended by Attorney General Menachem Mazuz, Military Advocate General Brig. Gen. Avihai Mandelblit, and senior civil and military judicial officials. It was decided that the hundreds of Palestinian prisoners from the Gaza Strip whose cases have been adjudicated and are serving jail sentences would serve out their jail terms in Israel. As for detainees whose trials were in progress, military courts have made a tremendous effort in recent months to wrap up their cases so they can be given prisoner status.

Some 20 detainees, whose cases are still under investigation and who have not yet been indicted, were transferred to the State Prosecutor's Office for prosecution in civilian Israeli courts.

The state has also assumed responsibility for any Gaza Strip residents arrested from hereon - whether through potential military operations in the area, or while infiltrating into Israel for carrying out terrorist attacks.

There was uncertainty at the MAG office in recent days over the fate of the five administrative detainees from Gaza. On Tuesday, the Ofer Camp military court deliberated the matter. The lawyer for four of the detainees, Tamar Peleg of HaMoked Center for the Defense of the Individual, complained to the court that the military prosecution had not sent a written notice announcing the formal end of military rule, and that she and the judge heard about about this from the media.

The military court ruled that with the end of military rule, the administrative detention orders for these detainees are no longer valid. Nonetheless, only three of the five detainees were released. Riyadh and Hasan Ayad were declared "illegal combatants" by a special order Halutz signed on Monday. Senior judicial authorities say there is solid evidence against them that substantiates their posing "a real danger to security."

Israeli civil rights groups are contemplating sending a petition to the High Court of Justice against the Israel Defense Forces, to demand that it comply with the Geneva Convention and release the rest of the prisoners and detainees. The Association for Civil Rights in Israel announced on Tuesday, "According to Article 76 of the Geneva Convention, a resident of an occupied territory who has been charged with a crime or sentenced by a military court must be held in the occupied territory itself. If, as Israel claims, the occupation in Gaza has indeed ended, then Article 77 of that same convention stipulates a basic duty to hand those charged and convicted in Israeli military courts over to the Palestinian Authority."