Triple Jeopardy: Refugees/Migrants/Palestinian Prisoners

25 Apr

Triple Jeopardy: Refugees/Migrants/Palestinian Prisoners


[Prefatory Note: This post was published in a somewhat altered form in Transcend MediaService on April 20, 2020 under the title “Triple Jeopardy and the Plight of Palestinian Prisoners.]


Double Jeopardy for Refugees/Migrants

Recently reflecting on the plight of refugees fleeing war zones in the Middle East and migrants from sub-Saharan Africa and Central America I was struck by the analogy to ‘double jeopardy.’ As widely understood, double jeopardy is a procedural rule of criminal law that prohibits prosecution by a state of an individual more than once for the same crime. It is deservedly treated as a human right that protects persons from being harassed after judicial acquittal by repeated allegations of the same alleged crime. The International Covenant on Civil and Political Rights (1966) in Article 14(7) defines double jeopardy: “No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” (There are exceptions for acquittals tainted by fraud, confessions by the accused, and the wording of the rule should be corrected for its gender bias implying that it is only ‘men’ who could be victimized by vindictive re-prosecution).


For some years, the images of violent border security associated with keeping masses of needy refugees or migrants from crossing international boundaries to reach more peaceful or affluent countries in Europe or North America is what prompted me to sense an analogy to the kind of ordeal that exists when someone wins an acquittal after a long, emotionally and economically costly trial, and is then confronted by a new indictment for essentially the  same supposed criminal offense. In a well-administered democracy, the double jeopardy rule is taken for granted, and prevents such injustices from happening. But what of the world of refugees and migrants?


What made the double jeopardy comparison apt for me were these haunting images of doubling down on punishment of those who were not only innocent, but already victimized by circumstances beyond their control, and then again punished for acts that deserve empathy and accommodation, not punishment, if humanitarian values were extended to  refugees/migrants. My existential premise, borne out by some experience, is that persons almost never leave their place of birth and family residence without overwhelming provocation, and are especially hesitant to use their small saving and meager borrowings to embark on a voyage to a distant land with a different language and culture. Most of us, even if dissatisfied with conditions in our native land or our personal circumstances will still not voluntarily depart from the familiarities of family and friends, and of language, traditions, and nationality. Only circumstances of grave danger such as presented by ravaged combat zones or resulting from grinding poverty found in societies that confront residents and entire communities with gray horizons of hopelessness that offer neither safety nor security, can induce most persons to so uproot themselves. In other words, the motivation underlying the emotional reality of the overwhelming majority of refugees and migrants is one of desperation, of grasping at straws and escaping doom. Of course, the small nomadic elites of adventurers, exiles, and expatriates are examples of persons leaving their home countries not from necessity, but in pursuit of the exotic and the paradisiac.


This sad depiction of the decision to flee to safety or to search for economic security is then generally accompanied by a treacherous and harrowing journey that often drains the traveler of his or her small savings. Many trips end with death and illness for many in the group, or perilous trips across stormy seas or barren deserts, only to be confronted by a coercive ‘no’ in the form of barbed wire, walls, detention centers, and even live ammunition if and when the destination is reached. To be placed in detention centers with long waits may be the best that can be hoped for by such forsaken souls, often including young children, that experience the depths of insecurity in their homeland, and also along the way that reaches a negative climax when and if the national goal is ever reached.


I am not suggesting that this refugee/migrant experience is double jeopardy in a legal sense, but it seems to possess the same ingredients of the unjust repetition of indictment and prosecution, itself punitive, that is prohibited as a part of civilized behavior in a society responsive to the rule of law, and protective of human rights. It is a kind of morally grounded, culturally and spiritually debasing, and often life-threatening duplication of criminal prosecution without any account being taken of human dignity and fundamental innocence of those being victimized, or the ordeal of struggling against a criminal allegation.


And yet, moral outrage or a call for compassion does not acknowledge the complexity of the issues raised. Unlike the individuals accused of the same crime a second time, the refugee/migrant does not, as such, pose real threats to the countries that are being expected to act as benign hosts or to extend hospitality to strangers in need. This is notto say that a country does not have the right to deny entry to those with criminal records or contagious diseases, provided due process is accorded, and similarly have authority to insist that those who enter do legally.


We live in a state-centric world where international boundaries define the outer limits of community, which has not changed fundamentally no matter how much we hear cosmopolitan sermonizing and ecologically persuasive calls for planetary identity. In such a framework, the citizenry of a country feel threatened in various ways by the influx of large numbers of strangers, especially if their racial and cultural characteristics clash with that of the country asked to show hospitality or grant asylum. The reality of this resistance is producing extremisms of scapegoating and xenophobia, which make moderates search for compromises in the form of requiring lawful entry, quotas, job training, and language and civilizational educational resources. Given the scale of the challenge, and the unlikely emergence of greater receptivity, the main line of an effective and humane response structure should be a large investment in overcoming the conditions in foreign countries that give rise to massive displacement and large numbers of persons desperate to find more sustainable life conditions. Overcoming double jeopardy in these settings depends on a self-interested globalization of responsibility for achieving peace and security, as well as lifting the curse of poverty, and this requires the drastic reform of the way the benefits of neoliberal globalization are distributed much more equitably than in the past.       



Triple Jeopardy for Palestinian Prisoners at a Time of Pandemic


This metaphor for layers of unjust suffering initially occurred to me while preparing a ZOOM presentation on the abuse of Palestinian prisoners in the context of the health dangers associated with the COVID-19 challenge. Such dangers were present for Palestinians under pre-pandemic conditions, but greatly aggravated by Israeli failures to mitigate the additional and aggravated risks that come from keeping around 5,000 Palestinian prisoners in overcrowded prisons where some of the guards and security personnel were reported as testing positive for the virus yet continued to interact with prisoners without prescribed personal protective gear (PPE), and where insufficient hospital and medical capabilities existed in the event that the disease started to spread. This overall sub-par situation was further accentuated in relation to an. estimated 172 child prisoners, many elderly and disabled prisoners, and almost all inmates incarcerated for nonviolent security offenses that should never have been criminalized because of falling within the scope of a right of resistance possessed by persons living under an apartheid regime, which is itself a serious violation of international criminal law. The right to resist Israeli apartheid, at least within the limits of international law regulating violence by reference to choice of targets and other considerations. Israel has not accepted WHO guidelines or a variety of humanitarian appeals by respected NGOs to release at least ‘low-risk’ prisoners as well as those with ‘underlying conditions,’ children, and the elderly.


Taking these considerations into account the ‘triple jeopardy’ framing seems justified to underscore the layers of injustice endured by Palestinian prisoners at this time. As the Palestinian writer, Ramzy Baroud, writes, “..all of Palestine has been in a state of ‘lockdown’ since the late 1940s when Israel became a state and the Palestinian homeland was erased by Zionist colonialists with the support of Western benefactors.” To drive the point home, Baroud adds, “In Palestine, we don’t call our imprisonment a lockdown, but a ‘military occupation’ and apartheid.” [See Baroud, “A Palestinian Guide to Surviving a Quarantine: On Faith, Humour, and ‘Dutch Candy,’” Middle East Monitor, April 5, 2020]. In effect, Baroud is insisting that all Palestinians are enduring an unjust ‘imprisonment’ that has lasted for more than 71 years with no signs of abatement, and is itself a punishment of individuals of a certain ethnicity for the ‘crime’ of existing.


On this basis, the criminalization of resistance, including nonviolent and symbolic forms, extending even to poem and poets (for example, Dareen Tatour, and her crime, the poem “Resist, my people, resist them”), has resulted in harsh confinement in Israeli prisons, including reliance on such legally dubious mechanisms as ‘administrative detention’ (imprisoning without charges or any due process for extended periods) and the unlawful transfer of prisoners from detention in Occupied Palestine to prisons in Israel [behind the green line], andd out of reach of family members). In effect, the imprisoning of any Palestinian in Israeli jails is Double Jeopardy because it puts Palestinians already punishment by lockdown, displacement, and dispossession behind bars because they dared to assert their right of resistance.


The allegation of Triple Jeopardy arises from the failure to suspend or mitigate prison condition in light of the Coronavirus Pandemic, and the related failure to take responsible steps to protect those so confined from contracting a highly contagious and potentially lethal disease. A virtual death sentence hangs over every single Palestinian prisoner for as long as the pandemic lasts, and poses especially acute risks with respect to particularly vulnerable categories of Palestinians living in prisons.



 Toward Solutions?

 It is not possible to set forth detailed proposals to overcome double and triple jeopardy as depicted. I will only indicate the vectors that point in a direction sensitive to practical and normative aspects of the challenge.

 For Double Jeopardy: seek to accommodate an ethos of hospitality and empathy with a major commitment at the UN and by national governments to take steps to remove the conditions of mass desperation prompting large numbers to leave their homelands, an undertaking ideally funded by a globally administered tax on luxury goods, financial transactions, fossil fuels, and transnational air travel.

 For Triple Jeopardy: release all Palestinian political prisoners immediately, with a sense of urgency, and commit to ending apartheid as the essential step toward a sustainable and just peace based on the equality of rights of Jews and Palestinians.





8 Responses to “Triple Jeopardy: Refugees/Migrants/Palestinian Prisoners”

  1. ray032 April 25, 2020 at 10:26 am #

    There are 25,000 People dying of Hunger and Malnutrition Every Day, 750,000 Every Month.

    It’s almost a joke to see the Land of the Free and Brave terrified of a virus with such a significantly smaller Death Count.

    Now that that poverty is coming to the affluent Nations, it could reasonably be thought of as a form of Divine Judgment.

  2. Schlüter April 25, 2020 at 11:11 am #

    It seems the Empire has adopted “Round up Ready” of the notorious Monsanto Company(closely connected to the Bill and Melinda Gates Foundation) fo the very big conflicts in this World, facing large parts of mankind with the danger of extinction!
    „An Existential Question and two very Different Answers“:
    Stay safe and healthy!

  3. Beau Oolayforos April 25, 2020 at 4:26 pm #

    Dear Professor Falk,

    A more humane refugee policy could and should be formulated and funded in the way you propose. But it still wouldn’t eliminate the root causes of the problem. We, as ‘westerners’, can’t do too much directly about,e.g., the tyranny of Assad, or the death-penalty records of Iran and China. But we could stop vying with them in the cruelty department.

    Many (most?) of the refugees in the world today are on the road because of policies directly traceable to Washington DC, and to the profit lines of Raytheon, Halliburton, Honduras and Yemen would not be what they are today without such bloodsuckers. Nor would Israel, without its welfare checks from US taxpayers.

    In addition to your proposals, my own wish list would be: draw back from many of the world’s quarrels – the US has no business as a belligerent in Iran vs Saudi Arabia, Israel/Palestine, India/Pakistan. Until we do so, the coveted role of disinterested peacemaker, of the World’s Policeman, will remain beyond ludicrous. We need to wash our hands, carefully, of the blood of Sissi, MBS, Trump, and the rest, as we get to work.

    • Richard Falk April 25, 2020 at 9:52 pm #

      I agree with your last paragraph. U.S. intervention and Euro-American carbon
      emissions generate many of the refugees (esp. ME and Central America) & and
      migrants from drought afflicted regions of Africa.

  4. Kata Fisher April 29, 2020 at 12:35 am #

    Dear Professor Falk, Dr Rashid Butter has important message. I hope you get to watch some of his messages that are currently censored – he is under some harsh prosecution and hardships that are coming from some wicked. But truly, to those wicked I speak psychical death to their brains – they be accursed in the name of Jesus Christ of Nazareth. I swear by Holy altar and all things on it, and I curses them in the name of Jesus Christ of Nazareth. Curse of Destruction upon them – All of them involved wicked. All. Roman Catholic Charismatic Church will not put up with depopulation.

  5. Mike 71 May 9, 2020 at 8:55 pm #

    “Double Jeopardy” implies that no person shall be tried and punished for an offense for which he was acquitted, or convicted.. However, double jeopardy does not apply to the serial offender who repeatedly trespasses on the rights of others, each trespass being a separate and distinct offense, triable and punishable separately. Palestinians are victimized by self-appointed leadership, who rejected partition under UNGAR 181 and subsequent offers of negotiation for statehood within the context of the two state solution, making them “perpetual refugees.” Descendants of the original refugees of 1948-49 have no nexus to Israel, are victimized by the governments of Lebanese and, Syrian “Apartheid,” denying them citizenship, educational, employment and professional opportunities, available to the citizens of those nations.

    In contrast, Jewish refugees of Algiers, Aleppo, Baghdad, Cairo, Damascus and other Arab cities, where their families had lived for generations, were expelled and robbed of their homes and assets without compensation, following Israel’s victorious “War of Independence.” They were resettled in Israel without U.N. funding, or a U.N. agency specific to their cause. They neither seek, nor assert a “right of return” to their former homelands, to which their descendants have no nexus. See:
    Note that the founding documents of both the P.L.O. and Hamas call for the “ethnic cleansing” of Israel’s 75% majority Jewish population.

    The Westphalian nation-state provides security, sovereignty, territorial integrity and political independence for the Israeli community (See: e.g. UNSCR 242/338), while the Palestinians having repeatedly rejected statehood for 72 years, are incapable of self-government. “Cosmopolitans (Neo-Marxist anti-Semitic speak for Jews),” are just as entitled to self-determination in. their ancestral homeland, as are the Irish, Japanese, French, Chinese and Russians.
    Scapegoating, xenophobia, and arrogant, greedy, self-centered sense of entitlement of the land of others, are the generators of “wars of aggression,” such as the Third Reich seeking “Lebensraum” to the east and the Arab League’s wars against Israel in 1948-49, 1967 and 1973. All nation-states regulate immigration, prohibiting the entry of criminals, subversives, and fifth columnists.

    The Israeli government cooperates with P.A. “President for Life” Abbas (now in the 16th year of the four year term to which he was elected in 2005) and the self-appointed rulers of Gaza to control COVID-19, yet such cooperation is disparaged by Abbas, who accuses Israel of importing the virus. Perhaps, Israel should temporarily suspend that cooperation tp produce a change in attitude in the un-appreciative Abbas. One solution to overcrowded prisons is to refrain from acts resulting in incarceration; many criminal offenders serve life sentences on the “installment plan,” committing serial offenses leading to serial prison sentences. Many of these begin. as juvenile offenders, graduating to adult criminal sentences.

    Israelis, like post-Apartheid South Africans, are entitled to majority rule within their borders, and to resist imposition of a minority, supplemented by illegal
    immigration, “Arab Supremacist Apartheid Regime,” not unlike the former South African “White Supremacist Apartheid Regime,” which ruled over a 90% Black and Mixed Race majority. Arab Supremacy, like White Supremacy, is racist, repugnant and a denial of majority rule.

    There is no “State of Palestine,” a fictional entity consisting of two feuding “non-state” terrorist enclaves on either side of Israel. As Palestinian self-appointed leaders have consistently rejected statehood within the context of the two state solution for 72 years, by default, Israel has become the “single state” solution, with the sole remaining issue being whether it will be majority ruled, or whether it will be subjected to rule by a minority “Arab Supremacist Apartheid Regime.” As a nation-state member of the U.N., Israel may invoke Article 51 of the U.N. Charter recognizing an “inherent right of individual, or collective self-defense.” The fictional “State of Palestine,” being a non state entity, holding mere “observer status” in the U.N., may not invoke that right. Thus, it is the Israelis, not the Palestinians, who are “resisting” foreign imperialism.

    A significant solution to the Palestinian refugee problem would be dissolution of the UNRWA and the merger of its functions into the U.N. High Commission for Refugees, terminating their “permanent refugee status” and allowing them to be resettled outside of the Middle-East. Many refugees, whom have escaped from UNRWA, have successfully resettled in Canada, South America, Australia and elsewhere, becoming residents and eventually citizens of their new homelands. They should be allowed to “vote with their feet,” as hundreds of thousands of refugees have previously done, rather than being held hostage for a fictional nation, which does not, and never will come into existence.


  1. Triple Jeopardy: Refugees/Migrants/ Palestinian Prisoners – Middle East News Digest - May 1, 2020

    […] following piece is crossposted from Global Justice in the 21st Century, the blog of JWE Board Member Richard […]

  2. Triple Jeopardy: Refugees/Migrants/ Palestinian Prisoners – Mend - May 1, 2020

    […] following piece is crossposted from Global Justice in the 21st Century, the blog of JWE Board Member Richard […]

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