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7. Legality of
Political Arrest
a) Legality of
Content
The Oslo Agreement
signed on 13 September 1993 has led to considerable changes in the life of
Palestinians. It was considered the most important event in the Arab
(Palestinian) – Israeli conflict, because it created a division among
Palestinians: supporters and opposers of the Agreement. The “Palestinian
Opposition” became a term that represented political factions or groups
opposed to the Oslo Agreement and the peace process. Some of these groups
were from within the PLO such as the PFLP and DFLP, while others were from
the Islamic opposition movement such as the Islamic Resistance Movement
(Hamas), the Islamic Jihad and the Islamic National Salvation Party. Still
others were political figures from the PLO and from the Palestinian
Legislative Council (PLC).
The Peace Agreements
not only created this division in the Palestinian community but also put
restrictions on the activities of the political opposition:
Under the title of
“Security Actions”, Article 2(a) of the Wye River Memorandum (signed by
Israel and the PA in 1998) provides:
1.
Outlawing and Combating Terrorist Organizations
a) The
Palestinian side will make known its policy of zero tolerance for terror
and violence against both sides.
b) A work
plan developed by the Palestinian side will be shared with the U.S. and
thereafter implementation will begin immediately to ensure the systematic
and effective combat of terrorist organizations and their infrastructure.
c) In
addition to the bilateral Israeli-Palestinian security cooperation, a
U.S.-Palestinian committee will meet biweekly to review the steps being
taken to eliminate terrorist cells and the support structure that plans,
finances, supplies and abets terror. In these meetings, the Palestinian
side will inform the U.S. fully of the actions it has taken to outlaw all
organizations (or wings of the organizations, as appropriate) of a
military, terrorist or violent character and their support structure and
to prevent them operating in areas under its jurisdiction.
[The Wye River
Memorandum, JMCC document series, December 1998]
1. If we look at the
pattern of arrest that the Palestinian Authority has carried out in the
Palestinian Autonomous Areas against Palestinian citizens, we can identify
the existence of political motivation. Arrest is carried out not because
the arrested individuals oppose the PA, but because of the involvement of
a third party: the Israeli Occupation. We thus have a group which
believes that has a right to resist the occupier (Israel) and another
group which is committed to the Peace Agreements and which considers such
resistance a threat to the Agreements. It is therefore not fair of the
group which has signed the Peace Agreements to outlaw and fight against
the other group.
Numerous decisions
of the UN confirm the right to resist an occupier. Such resistance is not
terrorism: it seeks to achieve freedom and self-rule, the basic
driving-force of the Arab – Israeli conflict.
2. When the term
“terrorism” is no longer used to describe the opposing group, then
according to national and international laws - which guarantee the right
to form political parties - such a group automatically becomes legal. It
is not acceptable for the provisions of a Peace Agreement to violate
national laws. Political arrest of Palestinians represents a clear breach
of Palestinian and International Law.
3. Moreover, many
Palestinians are being punished through arrest for past actions undertaken
during the Israeli occupation. This means that those people are punished
twice for the same action. This is illegal.
4. Article 16(2) of
the Oslo Peace Agreement (under the title: Confidence Building Measures)
states that: “Palestinians who have maintained contact with the Israeli
Authorities will not be subjected to acts of harassment, violence,
retribution or prosecution. Appropriate ongoing measures will be taken, in
coordination with Israel, in order to ensure their protection”. If the
Peace Agreements represent a commitment to the Palestinian Authority, then
why does the PA arrest people who cooperated with Israel in the past?
It seems that the PA
feels sorry for itself because it has discontinued the prosecution of
collaborators with Israel. It also seems that the PA uses this reason as
an excuse to deprive the “security prisoners” of their right to a fair
trial. When the PA states that the Peace Agreement does not provide for
the fair trial of security prisoners, then it should also be pointed out
that the Peace Agreements do not provide for their arrest.
b) Legality of
Measures
Married with three
children, Farouk Abu Hassan from Gaza City was an employee in the local
post office and was arrested by the Palestinian Authority on 8 November
1994. Thus the “Political Arrest Marathon” of political detainees began.
Soon after that
date, Palestinian prisons became overcrowded with political detainees
whose freedom was taken away in contravention of Palestinian law which
provides that the arrest and detention of a person shall only be permitted
for a maximum of 30 days and then only pursuant to an order issued by the
responsible official (Article 10, Penal Law of 1924, Gaza, and Article 114
of the 1961 Penal Law, West Bank).
The law also stated
that reasons for detaining a person have to be investigated within 3 days
of his apprehension.
(Article 100 of the
Principles of Penal Courts Law for the year 1961) stated:
“A member of the
judicial police will attend to the detained suspect within 48 hours of
arrest and shall, if not convinced, refer him to the General Prosecutor
who will in turn and within 24 hours hear him and decide to order his
arrest or release”.
This has not been
respected in the case of Palestinian detainees: people are arrested
without a written detention order and without a clear charge having been
brought. They are not questioned by the General Prosecution.
In all cases of
political arrest by the PA, the detainees are not presented before a judge
and are not presented before civil courts. They are detained for long
periods of time determined by the Head of the Security Service responsible
for the detention. In some cases such detention lasts for up to four years
under very bad conditions.
Article 113 of
the 1961 Penal Law provides that “if
the complainee has been brought in pursuant to a detention order and has
remained in the detention centre for more than 24 hours without being
questioned and without being brought before the General Prosecutor
(according to provisions of the previous Article), his detention shall be
considered as unjust. The official responsible for the [“] crime of
arresting the personal freedom [”] will be prosecuted according to the Law
of Punishments”.
The Palestinian
Security Services have invented a new method by which to increase human
rights violations: they use political arrest as a measure for collective
punishment by arresting entire families. Such action constitutes a clear
violation of Article 15 of the Palestinian Basic Law which provides that:
“Punishment must be individual: collective punishment is not allowed. No
crime or punishment is to be determined unless on the basis of a lawful
text and on the basis of a judicial judgment...”
It is difficult to
establish the place of detention of detainees: in most cases families
discover the place of detention unofficially and through a mediator. There
is no formal body within the PA responsible for informing families of the
whereabouts of their detained relatives.
This violates
Article 104 of the 1961 Penal Law which provides that “prisons
and detention centres should be [“] assigned [”] and organised according
to the law”. Article 105 provides that “No
person shall be imprisoned other than in the appropriate prison and no
prison official shall accept any person unless pursuant to an approved
order from the authority with jurisdiction [.] He shall not detain [such
person] beyond the period specified in the order”.
Detention centers
under the authority of the PA have not been organised according to an
official decision.
Detention orders are
only considered legal if based upon valid legal procedure. Detaining a
person can only be considered legal if his arrest is carried out in a
legal manner. Article 103 of the 1961 Penal Law provides that
“it is prohibited to arrest or imprison any person
without an order [having been issued] by the authorities with due
jurisdiction”.
Article 7 of
the same law provides that “Employees
of the criminal justice system are responsible for investigating rimes,
collecting evidence, arresting offenders and bringing them before the
courts with due punitive jurisdiction”.
Article 8 provides that “duties
within the penal justice system are executed according to specific legal
provisions by the General Prosecutor, by his assistants and, in Districts
without General Prosecutors, by Magistrates”.
Article 9 makes
reference to the assistants of the General Prosecutor and that their
responsibilities as members of the judicial police shall be carried out in
accordance with the law and delegated rules.
We can therefore
conclude that all the detention measures carried out by the Security
Services of the PA are illegal and invalid.
The abovementioned
Articles appear as follows in the Jordanian Legislation:
“Principles of
Penal Courts”
Chapter One
Judicial
Police and Its Responsibilities
Part One
Judicial Police
Article 7
Employees of the
penal justice system are responsible for investigating crimes, collecting
evidence, arresting offenders and bringing them before the courts with due
punitive jurisdiction.
Article 8
Duties within the penal
justice system are executed according to specific legal provisions by the
General Prosecutor, by his assistants and, in Districts without General
Prosecutors, by Magistrates.
Article 9 (1)
The following may
help the General Prosecutor to exercise the duties of the judicial police:
District Governor
Directors of Regions
Director of General Security
Police Directors
Police Officials
Government Employees with delegated powers for the purpose of
investigation
Prisons Directors …
Article 9(2)
The above-mentioned government officials shall execute their
responsibilities within the limits of the law.”
The common
phenomenon in all the cases of political arrest that were presented to the
High Court in Gaza and Ramallah is that the Attorney General asked that
all cases be referred to the State Security Court, which, he argued, had
jurisdiction. In two cases, the High Court agreed to this request: Ibrahim
al-Halabi whose judgment was handed down on 7 April 1997 and Ibrahim
al-Makadmeh whose judgment was handed down on 20 June 1997.
Yet according to the
law, political arrest is an administrative decision and not a judicial
decision: thus these cases fall within the jurisdiction of the High Court.
The text entitled “Judiciary of Invalidation” provides at page 344 that:
“The State Council
does not look into judicial measures that precede judgment. This rule is,
however, not absolute, as the procedures related to the case are not the
responsibility of the administrative courts. The procedures followed and
actions taken by the judicial police, such as arrest and detention, are
judicial as long as they are executed by employees of judicial
jurisdiction. In other cases they remain administrative.”
Dr. Tamawi, author
of the above-mentioned book, quotes the decision of the administrative
Egyptian court of the year 1957:
“Procedures, steps and actions carried out by the judicial
police with judicial responsibilities according to the law are considered
judicial, but other actions not of judicial nature are considered
administrative and remain under the supervision of the court.”
Thus we conclude that
administrative decisions of a judicial nature fall under the jurisdiction
of the administrative court, especially if such orders or procedures have
been taken outside the framework of any judicial law. If therefore the
High Court does not look into such cases, it will violate one of the basic
rights protected by the law and the Palestinian Basic Law.
Consequently, the passive reaction of the prosecution in
all political detention cases represents a clear violation of Article 108
which provides that “any
person who knows of a person illegally detained or imprisoned or [of a
person] detained in an inappropriate place of detention or imprisonment,
shall inform a member of the General Prosecution [.] He, in turn, shall
immediately go to the place in which the detained or imprisoned person is
to be found, shall carry out an investigation, shall order the release of
the illegally detained or imprisoned [person] and shall immediately record
in writing all of the above.”
In fact, articles of the law
were not the only victim of the practices of the Palestinian Authority.
The credibility of and respect for the judiciary were squandered as well.
The Palestinian Security Services refuse to implement most of the
judgments issued by the High Court of Justice ordering the release of
political prisoners. In 1999 the High Court looked into 52 cases of
political prisoners presented to it and ordered the release of 83
prisoners in 50 of those cases. To-date only 3 of them have been released.
The Executive Authority has
ignored the Palestinian judiciary in a very humiliating manner. For
example, in August 1997 the High Court, presided over by judge Amin
Abdel-Salam, ordered the release of 10 of the Bir-Zeit students on the
grounds that they had been detained without legal basis. Soon after the
decision of the court, Minister of Justice Freih Abu-Meddein forcibly
retired judge Abdel-Salam.
Consequently, political
prisoners and their families do not place much hope in the Palestinian
courts. Instead, they contact people with political influence to mediate
unofficially with the security services in order to secure the release of
their detained sons. This process has come to be known as “pleading”. It
essentially consists of a letter from the detainees addressed to President
Arafat or to the Head of the Security Service, asking him, after much
flattery, to interfere in the case and to release the relative concerned.
It is normally published in bold on the front pages of local newspapers.
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