Torture between International Human Rights Conventions and Palestinian Legislation: A Comparative Study

Abstract

The State of Palestine has declared that it respects human rights and the rule of law, that public freedoms are to be enjoyed by the Palestinian individual, and first and foremost that Palestinians have the right to protection from torture. Despite the inclusion of such rights in the state’s Basic Law and other relevant legislation, the actual practice of rights in Palestine reflects quite a different picture. This has especially been the case amidst the internal division of the Palestinian arena. Infighting has exposed citizens to torture in places of detention, whether in order to extract a confession or simply for being affiliated with a certain political party, as well as for other reasons. Given the discrepancy between theory and practice, and the exacerbation of the problem amidst the current factional division, there is a need to investigate the incidence of torture in Palestinian detention facilities. This study examines the period from the point of the political split to the time of writing, and first aims to reveal the scope and type of violations. It will go on to examine the underlying reasons and motivations for such violations, and recommend action that would see their curtailment. The paper examines how and why the legislation that upholds the right to be protected from being subjected to torture has not been well formulated in the relevant texts, and suggests that it is necessary to further study of the legislation to identify the textual weaknesses and imbalances, and to attempt to amend formulations to render them consistent with international conventions guaranteeing such rights. This paper thus begins with the recognition that Palestinians have the right to be exempt from torture in places of Palestinian detention. It takes as its material data from the beginning of 2007 to the end of March 2015, and carries out an analysis of the legal reality that regulates the right to be exempt from torture in theory and in applied practice. This data is taken as an assessment of the extent of commitment to uphold the provisions of the law, as well as a disclosure of the violations that have occurred. The paper concludes by proposing mechanisms for the improvement of implementation of the law.