District Court Approves Continuation of Abdullah Barghouti’s Solitary Confinement [PPA 164/10] [16.5.2010]

On 16 May 2005, the President of the Nazareth District Court, Judge David Cheshin, decided to approve the decision of the Israeli Prison Service (IPS) to keep the convicted terrorist, Abdullah Barghouti, in solitary confinement for six more months, because of the danger that he continues to pose. [1] Barghouti, who is serving 67 life sentences, will remain in solitary confinement for over six years as a result of this ruling.

In 2004, on the basis of his confession, Abdullah Barghouti was convicted on 108 charges of various offenses related to terrorism, including 66 charges of premeditated murder. On 30 November 2004, Barghouti was sentenced to 67 life sentences. Due to the nature of the threat that he poses, Barghouti, who was detained in August 2003,  was classified as a "security prisoner" and was held in quasi-isolation (along with one other prisoner) until February 2004. Following declarations he made against the State of Israel and in support of Hamas, including avowals that he will resume operations against Israel once he is released, he was placed in solitary confinement.

According to the Penitentiary Order of 1971 (hereinafter: "the Order"), the imposition of solitary confinement requires a court order, which may authorize solitary confinement for a period of up to six months. Another court decision is required to renew the order. In March 2010, the IPS filed a request before the District Court of Nazareth, sitting as a Court for Administrative Matters, to prolong Barghouti's solitary confinement for an additional six months. 

According to the IPS, Barghouti is still considered a security prisoner and an important figure among the Hamas leadership. Barghouti is also a demolition expert and, therefore, should be kept in solitary confinement. Moreover, the IPS claimed that Barghouti has never expressed remorse for his terrorist activities and has repeatedly expressed his belief that Hamas will bring about the fall of Israel. Both the IPS and the Israeli Security Agency (ISA) presented confidential evidence on the risk presented by Barghouti before the court, and asserted that the fact that there is little new evidence to support the ongoing danger posed by Barghouti can be attributed to the success and effectiveness of holding him in solitary confinement. At the request of the court, the IPS also presented a medical report and a psychiatric evaluation suggesting that there are no medical or psychological reasons for discontinuing Barghouti’s solitary confinement.

Barghouti, on the other hand, claimed that he has been held in solitary confinement for six years and that the Israeli authorities have no new information to justify the continuation of his solitary confinement. He alleged that the request to isolate him is based solely on the severity of the offenses for which he was convicted and is, therefore, an illegal punitive measure.

On 16 May 2010, Judge David Cheshin, the President of the Nazareth District Court, published his decision to approve the request by the IPS to continue holding Barghouti in solitary confinement.

Judge Cheshin noted that according to Article 19B of the Order, an inmate may be held in solitary confinement for reasons of state security, prison security, the safety of the inmate himself or of other inmates, and the preservation of discipline in the prison facility. Moreover, according to this article, solitary confinement may be imposed only when there are no other means to achieve the aforementioned purposes, and the decision to isolate an inmate must be proportionate.

Judge Cheshin also noted that it has already been determined that the use of solitary confinement is an exception to the principle of keeping prisoners incarcerated with their peers, which is based on the recognition that having human companionship is a basic human need and a basic human right. Therefore, this right can only be restricted in order to protect an important public interest by employing the least harmful measures possible. The measure of solitary confinement can never be a punitive sanction but only a preventive tool to be employed, if at all, subject to the constitutional limitations of Basic Law: Human Dignity and Liberty.

With regard to Barghouti, Judge Cheshin held that the confidential information presented to him by the IPS and the ISA suggests that in spite of his isolation, Barghouti has managed to establish contact with elements both inside and outside the prison, and his senior position in Hamas has remained intact. Moreover, despite the small amount of information gathered on Barghouti's activities, which can be attributed to the effectiveness of being held in solitary confinement, the information presented to Judge Cheshin includes data collected each year since 2003. Combined with the technical knowledge that Barghouti possesses and his statements in support of Hamas and the downfall of Israel, the information is enough to convince the court that Barghouti continues to pose a security threat and, therefore, should remain in solitary confinement.

This case involves the application of yet another tool available to the State to deal with the threats posed by terrorists – i.e., the use of solitary confinement to prevent them from continuing their terrorist activities while in prison. When balancing the injury to the rights of the inmates, on one hand, and the potential threat to state security presented by allowing convicted high-ranking terrorists to operate and even establish de facto "headquarters" within the prison, on the other hand, it seems that subject to the appropriate constitutional safeguards, the use of solitary confinement may be legitimate in some cases. However, it seems that much like administrative detention, the longer an inmate is held in solitary confinement, the greater the burden of proof the state should incur in order to prove that the detainee continues to pose a threat to its security. Indeed, in the present case, the extended period in solitary confinement, the rejection of less harmful measures such as quasi-isolation, and the reliance on confidential evidence, which the prisoner has limited ability to challenge, raise serious concerns as to whether a proper balance has been struck.

1. PPA [Prisoner's Petition Appeal] 164/10 Israeli Prison Services v. Barghouti, 16 May 2010 (Hebrew).