The Monitor

• 2001

• 2000
• 1999
• 1998

• 1997

• Introduction
• Applicable law
  1. International law
     1. The Israeli-Palestinian Agreements
     2. Human rights law and principles
     3. International humanitarian law
  2. Domestic law
     1. General comments
     2. Definition of collaboration
     3. Legal guarantees
• How does the P.A. deal with “collaboration”?
  1. General comments
  2. Arresting procedure
     1. Why? – Recent cases of collaboration
     2. By whom? – Security forces
     3. Where? – Problems of jurisdiction
     4. How? – Legal proceedings
  3. Treatment of detained “collaborators”
     1. Torture
     2. Death in custody
     3. Extra-judicial killings
     4. Disappearances
  4. Legal remedies
     1. Appointing a lawyer
     2. Visiting the detainees
     3. Judicial procedures
     4. Extra-judicial remedies
     5. Accountability of violators
• Social and economic consequences for the families
  1. Economic consequences
  2. Social ostracism
• Israel and the issue of collaborators
  1. Rehabilitation of collaborators
  2. Pressures to implement Oslo II art. XVI.2
• Conclusions and recommendations

I. Introduction

Scholars estimate that thousands of Palestinians collaborated in some way with Israeli authorities during the thirty years of occupation.¹ Exact numbers, however, are impossible to determine since collaboration is not a phenomenon willingly acknowledged by most of its perpetrators, and the definition of collaboration varies greatly from one source to another. Some Palestinian cells during the time of the first intifada, for example, considered instances of drug-dealing or pornography as “collaboration,” under the assumption that such “immoral” behavior undermined Palestinian society and diverted it from the ideals of the Uprising.

Why was collaboration such a widespread phenomenon? Numerous explanations exist, which can be summarized in three broad points.² First, Palestinians depended to a great extent upon the Israelis both for their livelihood (work, healthcare) and for all kinds of permits (issued by the Israeli Civil Administration). Israel could and did use this dependency as a lever to obtain the information it wanted. Second, until the time of the first intifada, no clear directives were ever issued by the Palestinian leadership as to what behavior was acceptable or not. Individuals, therefore, often undertook activities that looked relatively innocuous at the time but which later came to be regarded as “collaboration.” The third point relates to the Palestinian social structure itself and its basis on the hamula, the extended family or clan. Given this social structure, Palestinians are accustomed to approaching intermediaries to obtain certain types of services. Services are not viewed as rights but as favors that must be requested, and if the intermediary were successful in granting the request or obtaining the service, then he naturally expected (and deserved) some kind of reciprocity. This system made it easy for Israel to co-opt individuals, even family elders and mukhtars, since their social rank depended to a great extent on their ability to dispense favors, and this power lay ultimately in the hands of the Israeli authorities.

The problem of collaborators at the time of the first intifada has been well documented.³ With the beginning of the Uprising, the whole system of law and order collapsed in the occupied territories, and much of Palestinian society experienced vigilante justice. Palestinian cells emerged comprised of gangs of “masked men” who punished “immoral” behavior and pursued alleged collaborators.

At the same time, Israel increasingly needed collaborators to track down wanted men and to gather information in those areas that Israeli soldiers could not readily access. Thousands of Palestinians were tortured and summary executions were carried out in the occupied territories. During this time, collaborators often committed numerous crimes with total impunity (they were armed by Israel in case of need), but they also were pursued ruthlessly by masked men and, if caught, were invariably tortured and killed. In the midst of this vigilantism many innocent people – both women and men – were mutilated or killed as well, merely upon the suspicion or rumor of collaboration or as a result of a personal grudge or vendetta. This was a time of terror in the occupied territories, where the most basic guarantees of the rule of law were completely ignored.

But what has happened to collaborators since the establishment of the Palestinian Authority (PA)? The purpose of this research is to try and answer this question, by locating and interviewing alleged collaborators and letting them tell their stories. Part A deals with the legal status of collaborators, trying to identify both in international and domestic law how the crime of “collaboration” has been defined, and looking at what specific guarantees apply to collaborators. Part B turns to the reality, investigating how the PA deals with collaborators. But collaborators and their families also face social and economic consequences, and Part C examines the effects on the families of alleged collaborators. Finally, Part D takes a look at Israel's policy regarding collaborators, both its attempts to influence the PA's policy in the Palestinian territories and its endeavors to rehabilitate collaborators inside Israel.

One last word on the particular difficulties encountered in the course of this research. The issue of collaboration is obviously a very sensitive issue in the Palestinian territories, due to the potential consequences or implications for the participants, and the taboos involved. Palestinians tend to define their identity first and foremost by stressing their affiliation to the Palestinian people, and the family only comes second. It is therefore easy to understand the lack of sympathy for collaborators, who worked against the very core of the Palestinian identity: “Collaborators were seen as working against the Palestinian will. So the upper values of the Palestinian identity created a consensus and antagonism against particular persons who work against these values.”⁴ In fact, the consensus within the Palestinian society seems to be that collaborators ought to be killed in order to restore the unity of the people. This situation obviously affects the ability of the researcher to collect reliable information. Comprehensive data cannot be obtained, and information often is difficult to verify. The PHRMG tried its best to circumvent these difficulties by contacting as many sources as possible – PA officials, local and international human rights activists, lawyers, journalists, academics, and also the people directly involved, the alleged collaborators and their families.

This research has been conducted between February and August 2000, before the eruption of the second, al-Aqsa intifada. The phenomena of collaboration has now once again raised public attention as collaborators are arrested and killed in connection with the activities of Israeli special units in the Palestinian territories since 29 September 2000. However, these newest developments have not been included in the present research. It is also well possible that the attitude of the population towards alleged collaborators has toughened over the last three months.

        A. The Israeli-Palestinian Agreements

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 (also known as Oslo II or the Taba Agreement) followed two earlier agreements, the Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993⁵ (also known as the Oslo Agreement) and the Agreement on the Gaza Strip and the Jericho Area of 4 May 1994⁶ (also known as the Cairo Agreement). The specific problem of collaborators was first mentioned in the Cairo Agreement, Article XX.4:

Sections B and D below will discuss the practical effect of this provision. From a legal point of view, it would appear that a “collaborator” has been identified as a “person who has maintained contact with the Israeli authorities”, without being very explicit as to the nature and the extent of these contacts.⁷ However, it is interesting to note that there are cases that fall under the broad category of “collaboration” as defined by the PA but are not covered by this provision stricto senso: the land dealers. People accused of selling land to Jews do not necessarily “maintain contact with the Israeli authorities”, since the deals are often concluded between private individuals or companies.

Another point that is unclear in these provisions is the time limit. Can cases of collaboration that occurred after the signing of these agreements be prosecuted? In fact, both provisions use the past tense to refer to Palestinians who “were in” or “have maintained” contact with the Israeli authorities. The Palestinian interpretation of this provision concludes that activities of collaboration committed after 4 May 1994 can be prosecuted.⁸ Since the provision also appeared in Oslo II however, one could argue that Palestinians can be prosecuted for activities of collaboration committed only after 28 September 1995, at least in the territories handed over to the PA after 4 May 1994.

Finally, it is worth mentioning here a distinction that should be made between, on the one hand, the crime of collaboration itself, and on the other hand, the criminal acts committed by collaborators not at the request of their employers, but never prosecuted during the occupation since they were armed and protected by Israel and therefore enjoyed impunity. Indeed, a report by B'Tselem mentions numerous such cases where known collaborators committed murders during the first intifada that were never punished.⁹ It is unclear whether the provisions of the Interim Palestinian-Israeli Agreements cover only the crime of collaboration – i.e. providing information to Israeli intelligence, actively participating in their operations and so on – or if they cover the collaborators themselves, and therefore prevent their prosecution whatever the nature of their crimes. In fact, this distinction has become completely blurred in the Palestinian rhetoric.

Other provisions in the Interim Palestinian-Israeli Agreement deal more generally with respect for human rights. Oslo II art. XIX provides that “Israel and the Council [i.e. the Palestinian Authority] shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms and principles of human rights and the rule of law”, and in the annex dealing with security arrangements it is provided that “[s]ubject to the provisions of this Agreement, the Palestinian Police and the Israeli military forces shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms of human rights and the rule of law, and shall be guided by the need to protect the public, respect human dignity and avoid harassment.”¹⁰ These provisions might only reflect the diplomatic rhetoric of the peace agreements, but they constitute nonetheless one of the bases of the liability of the PA under international human rights law.

B. Human rights law and principles

To determine what part of international law is applicable to the Palestinian territories, first one has to discuss the status of those territories under international law. As a sub-State entity, the PA is not yet formally bound by instruments of international law, although it did sign a number of treaties, notably with Israel.¹¹ However, this may be irrelevant since the PA has asserted on numerous occasions its will to respect those human rights provisions enshrined in the United Nations Declaration of Human Rights.¹² As explained by Prof. Irwin Cotler, “[p]ublic undertakings by the Palestinian Authority to respect human rights are organized around and find expression in five basic sources:

1. undertakings made to human rights groups such as Amnesty International;
2. public decrees and declarations made by the PA undertaking to comply with human rights norms;
3. provisions of the Oslo Accords obliging both parties to comply with 'internationally accepted norms and principles of human rights and the rule of law';
4. undertakings under the draft Palestinian Authority Basic Law [whose art. 11 provides that Palestine recognizes and respects the fundamental human rights and freedoms prescribed in the Charter of Human Rights and other instruments];
5. and finally, responsibilities under international human rights law and humanitarian law [as the PA exercises 'state-like' powers, although a non-State entity, it is considered a responsible body and therefore subject to customary human rights law].”¹³

Of course, human rights law and principles do not explicitly deal with the issue of collaborators and will not help us to determine what is meant by “collaboration.” They do, however, provide guidelines regarding the treatment of prisoners in general which are applicable to all detainees and prisoners, including “collaborators.” These regard in particular the right to life,¹⁴ the prohibition of torture or other cruel, inhumane or degrading treatment,¹⁵ the right to liberty and the security of the person,¹⁶ the ¹⁷ right to due process of law and the social and economic rights.¹⁸

C. International humanitarian law

1. The first view distinguishes different status depending on the depth of the jurisdiction granted to the PA by the Interim Agreement of 1995. This agreement divided the Palestinian territories into three sets of areas, A, B and C. In this view, “A” areas, where the PA has exclusive security jurisdiction over its citizens, can no longer be considered occupied territory, and therefore the Geneva Conventions of 1949 do not apply there. Area B would be a debatable question, whereas Area C would clearly remain occupied territory.
2. The second view emphasizes the functional effects rather than formal provisions of the Interim Agreement. As long as, say, a closure of the Territories by the Israeli authorities affects the citizens in Area A – which it certainly does – then the whole of Gaza and the West Bank can still be considered as occupied territory and, therefore, subject to international humanitarian law no matter how extensive the Palestinian jurisdiction. This viewpoint would not subject the PA itself to the provisions of the Fourth Convention, relating to the civilian population in an occupied territory, since Israel alone would be considered the occupying power.
3. The third view goes further. It could be argued the PA is dependent to such an extent upon the Israeli authorities that it can be considered as merely an agent of Israel. This view is not completely alien to reality. One need only look at the cooperation between Israeli and Palestinian security services for the arrest of Palestinians that oppose the peace process: the Israeli Attorney General needs only to transmit to its Palestinian counterparts a list of the people it wants arrested, without any further explanation as to the facts or charges, and the PA will comply with these wishes.¹⁹ If this view is accepted, then international humanitarian law could in fact be applied even to the PA, just as it is applied to the Israeli authorities acting in the occupied territories.²⁰

International humanitarian law prohibits murder, torture, corporal punishment or “any other measures of brutality whether applied by a civilian or military agents” (art. 32), the article prohibiting the punishment of a protected person²¹ “for an offence he or she has not personally committed” (art. 33), the articles regulating the penal procedure to ensure the right to fair trial (art. 71-73) and the article regulating the treatment of detainees (art. 76).

2. Domestic law

    A. General comments

An analysis of Palestinian domestic law is not easy since it is comprised of so many different, competing, and sometimes contradictory sets of rules. Today Palestine suffers from a plethora of laws, and the task of untangling them is complicated. An examination of domestic law requires one to go back to British Mandate laws and emergency regulations, and even Ottoman laws. Since the establishment of the State of Israel in 1948, Gaza and the West Bank have experienced different evolutions of their legal systems. The Gaza Strip fell under Egyptian military rule, but pre-existing substantive laws and legal structures remained largely in force. The West Bank, on the other hand, was conquered by Jordan and annexed to it in 1950 and therefore subjected – at least in part – to Jordanian laws. After 1967, the Israeli occupation started to replace these rules with Israeli military orders, of which over 1'000 were issued in Gaza and over 1'400 in the West Bank.

In effect, Gaza and the West Bank currently remain subject to different sets of rules and, therefore, also different judicial systems. Which of the subsequent sets of rules are still valid with the establishment of the PA remains unclear, and Presidential decrees have only added to the confusion.²² In the current transition phase from a military structure to a civil government, the PA has undertaken the difficult task of uniting these legal systems and erasing contradictions. This task has encountered resistance both in Gaza and the West Bank, since each judiciary wants to impose its own system in order to avoid having to adapt to new rules and institutions. In any case, the lack of training of lawyers and judges means that the laws are rarely referred to, and then only in very random and vague ways.²³

B. Definition of collaboration

Let us turn first to the definition of collaboration. British Mandate laws, still in force in Gaza, do not mention collaboration as such. The Criminal Code Ordinance No. 74 of 1936 instead mentions the crimes of “treason”²⁴ which includes, among other things, levying war against the authorities, “seditious intentions,”²⁵ i.e. bringing into hatred or contempt or exciting disaffection against the authorities, and “unlawful association,”²⁶ i.e. any body of persons, incorporated or unincorporated, which advocates, incites or encourages the overthrow of the constitution or of the government of Palestine. The same applies to the Defense (Emergency) Regulations of 1945, which only mention the crime of “unlawful association.”²⁷ Most of these crimes were punishable by death or life imprisonment.

Prisoners in al-Saraya central prison, Gaza   Photo by: PHRMG

Once the West Bank was subjected to Jordanian rule, it also became subjected to Jordanian laws, which are widely used today. However, researching Jordanian law is not easy for non-Arabic speakers since no English translations are available. The 1960 Jordanian Penal Law mentions the “Crimes against State Security” (art. 107-109), “Treason” (art. 110-117) and “Contacting the Enemy with Illegal Intentions” (art. 127-129). The most relevant provision with regards to collaborators seems to be art. 112, which states that “[e]very Jordanian who intrigues against the State, or contacts, or has contacts with the enemy to assist him in any way, will be punished by death penalty.”²⁸

On 5 May 1997, the Minister of Justice Freih Abu Middein announced that the PA would begin using a Jordanian law that provided the death penalty in cases of Arabs selling land to Jews.²⁹ Before 1967, the Jordanian law specified that selling land to “foreigners” should be punished by up to 5 years in prison, with hard labor, but this law was changed in the 1980s so that the death sentence could be imposed. Jordan abolished this provision in 1997 as part of the peace process with Israel. It is therefore confusing to note that the PA uses Jordanian laws introduced after 1967, even if they subsequently were abrogated by Jordan.

The 1979 Palestinian Revolutionary Military Code, used by the PLO in Lebanon and still used today in military courts, refers in its second part, Chapter 1, to “crimes against revolution security.” This code seemed to be most suited to address the issue of collaboration since the crime of collaboration typically occurs in time of war. Art. 131, under the subtitle “Treason,” provides capital punishment for “anyone who worked for an enemy state or party against the revolution, or made contact with it or with someone working for it to carry out attacks against the revolution,” or to “carry out military operations to harm the military actions of the Palestinian revolution.”

During the first intifada, Israel defined collaborators (sayanim in Hebrew) strictly as “Palestinians who are registered as having official intelligence contacts with one of the security branches operating in the Territories – the General Security Services (GSS), the Israel Police, the IDF, or the Civil Administration.”³⁰ This category also included land sales agents who helped the government gain control of land in the occupied territories. But Israel also recognized as “threatened individuals” Palestinians who had certain ties with the authorities, but did not carry out intelligence missions or provide other direct assistance.³¹ This category included land brokers who sold land to private Israeli individuals.

Palestinian cells, on the other hand, used a broader definition of collaboration. This definition can be inferred from the orders issued by the Unified National Command³² and other political groups, which were then implemented by their “strike forces.” This definition recognized roughly six categories of collaborators:³³

It is difficult to identify any definition of “collaborators” used consistently since the establishment of the Palestinian Authority. It should be noted however that prisoners in the PA fall under three different categories: the “criminals,” the “political prisoners” – referring in general to opponents of the peace process – and the “security prisoners,” in other words the collaborators. There is no formal, written description of what exactly is considered collaboration, but according to Hamdi el-Rifi, Director of the Prisons for the West Bank and Gaza, security prisoners are accused of either spying or selling land to the Jews. In fact, it appears that the label of collaboration is applied even more generously than this, to stigmatize whatever the regime dislikes. This comprises drug dealing and addiction, since taking drugs weakens the Palestinian spirit and therefore, as in a zero-sum game, favors the enemy's side. In some cases mere criticism of the PA is already assimilated to collaboration, as criticism is felt to undermine Palestinian unity.³⁴ “Collaboration” therefore loses the characteristics of a recognizable crime to become more of a rhetorical device, opening the door to the possibility of abuse. « Clearly, collaboration is an easy accusation that can be used to justify actions motivated through personal interest. Settlement of accounts within factions and families can plausibly be justified in similar terms. »³⁵

One last word on the pursuit of women accused of “immoral behavior,” a charge assimilated to collaboration during the first intifada. In the early days of the PA, numerous reports from Palestinian and Israeli human rights monitors, as well as eyewitness testimonies, described cases where PSS agents intervened in Palestinian communities to “mete out punishment to those accused of “moral deviations,” such as drug dealing and prostitution.”³⁶ Cases still occur today, but they are less linked to suspicion of collaboration. In addition, such activities as prostitution have now become more widespread with the return of thousands of Fateh and other fighters from exile, and although still regarded as moral degeneration in the very conservative Palestinian society, they might not be prosecuted with the same fury as during the first intifada. Islamic movements such as Hamas also seem to have dropped some of the more offensive and unpopular features of their social agenda.³⁷

C. Legal guarantees

The question of the treatment of prisoners has already been researched elsewhere.³⁹ Numerous guarantees exist in Palestinian laws regarding the powers of arrest and detention, access to legal help and other provisions relating to the rule of law. In short, the main legal instruments seem to be:

For Gaza:
the 1924 Criminal Procedure (Arrest and Searches) Ordinance
the 1962 Gaza Constitution
the 1979 PLO Revolutionary Code

For the West Bank:
the 1961 Jordanian Code of Criminal Procedure
the 1979 PLO Revolutionary Code

Unfortunately, a draft law to prevent the torture of apprehended and detained persons was rejected in May 2000 by the PLC, because it failed to reach the necessary majority. The law would have considerably clarified and improved the legal protections of persons deprived of their liberty.⁴⁰ It provided a number of guarantees such as the right to contact a lawyer or the family within 6 hours of the arrest, the right to see the lawyer or the family within 48 hours and the obligation for the authorities to announce the whereabouts of the detainee. The draft also provided for a strict prohibition of any form of torture and would have invalidated confessions, statements or affidavits obtained under duress.

Regarding the accountability of violators of human rights standards,⁴¹ in Gaza, the law provides that any official directing an illegal detention, failing to perform an act which he is obliged to do by law, or disregarding the contents of a court order is subject to imprisonment for a period of two years.⁴² In the West Bank, any official illegally arresting and detaining an individual, as well as any official working in a detention center involved in the illegal detention of any individual may be imprisoned for a maximum period of six months.⁴³

The draft Palestinian Authority Basic Law provides that “All Palestinian authorities and organs as well as all individuals and persons in Palestine shall be subject to the law and shall be accountable for its violation.”⁴⁴ The previously mentioned draft law for the prevention of torture also provided clear directives for law enforcement officials, including the obligation to start an investigation in case of complaints and to initiate penal proceedings if the circumstances warranted. Several articles provided for the punishment of officials found guilty of abuse, namely forced labor for 5 years and up, depending on the level of abuse.

Since Israel's withdrawal from territories handed over to the Palestinian Authority, its need to recruit agents has grown. In the absence of an open Israeli presence, particularly in Gaza, the burden of gathering intelligence now falls mainly on collaborators. It is perhaps the dirtiest game of the occupation, and far from fading away, it continues as strong as ever, with no one to question its legal and moral implications. In this game, everything is permitted. Catch as catch can, the Shin Bet tries every possible method of acquiring more agents and its people cynically exploit economic and personal hardships. A license to visit Israel? An exit permit for medical treatment? Family reunification? First tell us a little about what's happening in the village mosques.⁴⁵

Prosecution of collaborators is certainly a legitimate task of the PA. On the one hand collaborators have sometimes committed criminal acts while active for Israel and crimes deserve punishment. On the other hand, with the end of the occupation, the Palestinian society needs to deal with this issue to make peace with itself and move on to the future on sounder grounds. The European experience following World War II shows that these countries started by investigating and prosecuting tens of thousands of cases of collaboration in the immediate aftermath of the war, when society was most demanding justice, even pronouncing a substantial number of death penalties. A few years later however, when the situation had cooled off a little and collaborators could be reintegrated in the society, the governments issued amnesty laws and most death sentences were never carried out. Can any similarity be found in the case of the PA ?

First of all, as we have seen, the issue of collaborators already triggered a true witch-hunt during the first intifada. This could in fact very much be compared to the initial purge of collaborators that occurred in Europe. With the establishment of the PA, the issue has been dealt with in a much less spectacular way. Because the occupation has not yet formally ended, a straightforward handling of the issue by the PA has been prevented, and the following chapters will examine the question of collaborators still working for Israel even after the establishment of the PA. Many alleged collaborators have, however, been arrested by the PA, and this research will also examine what has happened to them. Interestingly, the PA justifies these arrests as an attempt to protect collaborators from society, which would otherwise seek revenge by more forceful means. Many people interviewed for the sake of this research stressed however that collaborators are first and foremost victims of the occupation, in the sense that collaboration was forced upon them by the occupier who controlled their means of livelihood. From this perspective they should also be treated as victims and given a chance to be rehabilitated.

Finally it should not be forgotten that a number of collaborators have been relocated to Israel,⁴⁶ and that some were even integrated in the Palestinian security services, who ironically value their experience in surveillance and gathering of information, or tries to recruit them as double agents, to provide information about GSS methods and messages and the names of other collaborators.⁴⁷

2. Arresting procedure

   A. Why? – Recent cases of collaboration

Israel's use of informers and collaborators from the Palestinian population is one of its oldest and, by the Palestinians, most hated tactics in Israel's struggle with the Palestinians. But in the past few months the Israeli secret service and army have been stepping up their recruitment efforts – part of their country's attempt to be prepared for the violence that many on both sides of the struggle consider likely to erupt if the peace talks that start on Tuesday in Camp David do not produce an agreement that satisfies both sides.- - - Asked if the army and security services were stepping up the recruitment of informers, the officer smiled and said: “There are a lot of volunteers.”⁴⁸

To understand why the search for collaborators continues seven years after the establishment of the Palestinian authority, we need to look back at the role collaborators played during the first intifada. Collaborators were a convenient way for Israel to obtain information in the Palestinian territories they occupied. In the early days of the first intifada however, in 1988, the Unified National Command called upon all Palestinian to resign from the positions they held in the Civil Administration and to end all collaboration with Israel. This call was widely followed, disrupting the intelligence network Israel had patiently woven. The response of then Minister of Defense Yitzhak Rabin was to crack down forcefully on the first intifada (“if they throw stones, break their arms”), but this policy was blatantly inefficient and badly damaged the international image of Israel. The next Minister of Defense Moshe Arens applied a more subtle policy that relied on the work of collaborators and undercover units, which led to the recreation of the network of collaborators.

The situation changed once again with the establishment of the Palestinian Authority and the creation of the Palestinian security services, and especially the Preventive Security. On the one hand, since the GSS⁴⁹ could now rely on both the PSS and the American CIA for its operations, the need for collaborators was reduced to “normal” inter-State espionage. As the above excerpt points out, however, the pull-out of the IDF meant that Israel could no longer rely on its open and direct presence in the territories to gather information, this increased the need for local intelligence activities.

Incidents involving collaboration have continued to occur following the establishment of the Palestinian Authority. These often entail providing information on “wanted men” to Israeli undercover units or participating in Israeli operations. Often these operations couldn't have been carried out without the help of collaborators. The Abu Rish incident, for example, refers to the killing on 28 November 1993 in Gaza by an Israeli undercover unit of Ahmad Abu Rish, a former “wanted” Fateh activist who had been given amnesty less than a week before. The Jabalya incident refers to the killing on 28 March 1994 of six Fateh activists in Gaza's Jabalya refugee camp by an IDF undercover unit. Hani Abed was a university lecturer and leader of the Islamic Jihad, arrested on 24 May 1994 as the first political prisoner of the Palestinian Authority. He was released on 14 June 1994, but on 2 November 1994, he « opened his car door and triggered an enormous explosion. All Palestinian groups, including Fateh, were convinced his assassination bore the fingerprints of an Israeli hit job. »⁵⁰

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The link to collaboration of the Palestine Mosque incident is not as clear. As recalled by Graham Usher, “on 18 November 1994, 200 Palestinian police and PSS members converged on Gaza's central Palestine Mosque to head off an Islamist demonstration. Inexplicably, they opened fire on the worshippers. The upshot was running street battles between police and civilians all over Gaza which, by the end of the day, had claimed 13 lives and left more than 200 wounded, the highest daily toll of fatalities in Gaza in 27 years of occupation.”⁵¹ This is probably what really happened. But obviously the authorities weren't very happy to bear the responsibility of this disaster. “On 20 November, Fateh issued a ferocious statement accusing Hamas and Jihad not only of orchestrating the 'Palestine Mosque massacre', but of assassinating 8 of the 13 victims because they were 'Fateh activists'.”⁵² So the responsibility for the incident shifted from the Palestinian authorities to the Islamic movements. And then it shifted again: a poll conducted on 29 December 1994 by the Center for Palestine Research and Studies in Nablus revealed that 60% of the Palestinians believed that Israel was responsible or partly responsible for the clash.⁵³ This anecdote once again stresses the random use of the accusation of collaboration by the authorities, in this case to cover up the PA's own excesses, with the tacit consent of the population. Rumors spread and become the popular truth, and then people are arrested and charged with collaboration for having participated in an imaginary version of the shooting.

B. By whom? – Security forces

The Palestinian authority is plagued by an extraordinary number of different security forces which operate with unclear mandates, insufficient coordination, and excessive autonomy from civilian control.⁵⁴ The pattern seems to be that, especially in Gaza, collaborators are arrested by the mukhabarat, the General Intelligence, rather than by the Preventive Security. There appears to be some sort of division of labor between the Preventive Security and the General Intelligence, the former dealing mainly with political opponents to the peace process, i.e. the military wings of Hamas and the Islamic Jihad – whereas the latter, tightly linked to Yasser Arafat, focuses on internal problems. This is not an absolute rule, however. In a few cases, alleged collaborators have been arrested by the istikhbarat, the Military Intelligence, or other security forces.

The problem goes deeper than this unclear division of labor. The only legal basis of the security forces is to be found in Annex I of Oslo II, which explains what is meant by the “strong police force” to be created in Palestine. Article IV.1 details the “duties and functions” of the police forces in the following terms:

1. maintaining internal security and public order;
2. protecting the public and all other persons present in the areas, as well as protecting their property, and acting to provide a feeling of security, safety and stability;
3. adopting all measures necessary for preventing crime in accordance with the law;
4. protecting public installations, infrastructure and places of special importance;
5. preventing acts of harassment and retribution;
6. combating terrorism and violence, and preventing incitement to violence; and
7. performing any other normal police functions.

Other than these rather broad duties and a general undertaking to respect human rights,⁵⁵ no internal rules or regulations exist to constrain their actions. Furthermore, the Interim Agreements foresaw the creation of a police force comprising 6 branches, which has not been respected in practice. The consequence of this is that existing Palestinian security forces are virtually outside the law, and this seemingly unlimited power is exacerbated by the fact that, as we will see, they do not merely carry out the arrests of alleged collaborators, but also carry out the investigation of the cases and the interrogation of suspects.

A security guard at al-Saraya prison, Gaza  Photo by: PHRMG

One more comment should be made on the composition of the security forces: “All of the intelligence forces – as well as the official police force – are implicated in [human rights] abuses. But the crucial agency appears to be the PSS. This is not just because of its size . . . but more its social and political composition. Recruited almost exclusively from inside the territories, the PSS is made up largely of young Fateh activists who won their political spurs during the Palestinian uprising as prison activists, youth cadres, or “fighters” in Fateh's underground military wings.”⁵⁶ Although the author of these lines was not specifically discussing human rights abuses such as torture or inhumane and degrading treatment, his comment may well help to explain why prisoners – especially security prisoners – are at risk of torture in PA jails. If the members of today's security forces are the same activists responsible for the incredibly cruel and arbitrary treatment of collaborators during the first intifada, then one can easily attach credibility to the testimonies discussed below.

The problem created by the nature of the security forces can be illustrated by the case of Mohammad al-Jundi, from Shijayeh in the Gaza Strip. As reported by the PHRMG in its report on Deaths in Detention, “Mohammad al-Jundi (age 33) was taken from his cell in Gaza Central Prison on April 2, 1995, and brought to a street corner in Jabalya. Four masked men shot him and shouted that the Fatah Hawks were responsible. It was the same corner where six members of the Fatah Hawks were killed by Israeli undercover troops in 1994. Al-Jundi was suspected of having served Israel as a collaborator during the [first] intifada.”⁵⁷ Despite a report in the media that the Palestinian police and the general prosecution were investigating the case,⁵⁸ it appears that the PA never took any measures other than granting the family of al-Jundi a monthly allowance of 420 NIS. The PHRMG however was able to determine the names of the four people involved in the killing, and it appears that some of them were working for the istikhbarat.

C. Where ? – Problems of jurisdiction

 

About a month ago, N. was driving his car down Saladin Street in the center of East Jerusalem. Out of the corner of his eye, he noticed a vehicle speeding towards him from behind. Within a few seconds the car blocked his way, two husky fellows jumped out, opened the doors of his car, held a pistol to his head and ordered him to drive in the direction of Jericho. For three weeks N. was held on the premises of the Palestinian security service and interrogated on suspicion of having collaborated with Israel. The abduction itself, symbolically enough, was carried out opposite the Israeli Justice Ministry on Saladin Street, and the details of it became known to Israeli police investigators from N. himself, only after he was released.⁵⁹

The terms of the Interim Agreement could let one think that the Palestinian jurisdiction to arrest suspects is limited to only certain areas where it enjoys complete jurisdiction, namely Area A.⁶⁰ In practice however, collaborators are arrested everywhere in the territories, including East Jerusalem. This freedom of movement and operation of the Palestinian security services can be traced back to early 1994, when an informal agreement was reached with the Israeli Shin Bet. At that time, Muhammad Dahlan, the head of PSS in Gaza and Jibril Rajub, his counterpart for the West Bank, met in Rome with the then head of the Israeli Shin Bet Ya'acov Peri and the IDF's deputy chief-of-staff Amnon Shahak. The outcome of the meeting was that Israel would let the PSS operate throughout the West Bank and Gaza in return for a PSS crackdown on the Palestinian opposition and especially Hamas.

This understanding, subsequently formalized in the Cairo and Taba agreements, explains why collaborators are pursued and arrested in all the Occupied Territories. Israel turns a blind eye on Palestinian activities in return for intelligence cooperation. The red line at the time of the Rome understanding was that such activities would not be tolerated in “sovereign” East Jerusalem,⁶¹ but even this restriction seems to have been dropped in practice. “The security services of the PA began operating in Jerusalem about seven years ago [i.e. in 1993] with the agreement of the Shin Bet. At first, this was minor, clandestine activity, almost on tiptoe, but gradually it grew to such dimensions that a senior Shin Bet official has recently called the phenomenon 'a many-tentacled octopus. A Golem has risen up against its creator'.”⁶² As a rule, suspects located outside Area A are simply abducted and taken to areas where the PA enjoys complete jurisdiction.

A recent and even more remarkable development is the rumors of Palestinian activities against alleged collaborators in the heart of Israel. On 13 September 2000, the Jerusalem Arabic newspaper al-Quds reported that a collaborator with Israel now living in the Tel-Aviv – Jaffa municipality was warned by the local police that a Palestinian cell working for the PA was monitoring his moves and preparing his abduction. It is unclear if these activities, if confirmed, are indeed carried out by Palestinian security services or if they result from private initiatives.

D. How ? – Legal proceedings

Formally, the proceedings against alleged collaborators are to be initiated by the office of the Attorney-General of the State Security Courts, which issues the arrest warrant. Suspects are arrested for an initial 48 hours. If the investigation reveals that the suspicions were founded, a court can renew the order of detention for up to 30 days. After 30 days, the detention cannot be renewed without a written order from the Attorney-General himself, and then only for a maximum of 3 months. Trials, however, are held only if the suspect is accused of a crime that occurred after 4 May 1994. Attorney-General Khaled el-Qidrah indicated in an interview conducted on 15 June 2000 that this procedure had been put in place six months earlier, when the jurisdiction for the prosecution of alleged collaborators was transferred from the civil to the State Security Courts. Before that,⁶³ it seemed that suspects were first summoned and interrogated by the security services. Once the interrogation was over, suspects were referred to the civil district prosecutor, who would review the case and decide whether to refer it to the military prosecutor. Finally, the file would be forwarded to the general prosecution for a final decision on the fate of the suspect: he could be released, released on bail, or detained for an unlimited period of time.

However, in practice no arrest warrant is usually issued before the arrest, although the Attorney General's office has this responsibility. What is worse is that some judges are happy to collaborate with the security services and sign arrest warrants after the fact without investigating the charges or interrogating the prisoners. Sometimes, particularly in the case of the State Security Courts, judges go as far as signing blank warrants that the security services then use at their discretion. The office of the Attorney-General admitted that the security forces are sometimes reluctant to submit their cases to them.⁶⁴ The result is that collaborators are not officially charged and are, therefore, kept outside the law, at the mercy of their wardens.

According to the rules of procedure applicable in the PA, the investigation and interrogation of suspects falls under the responsibility of the Attorney General.⁶⁵ In practice, however, both investigation and interrogation are carried out by the security services themselves, a situation that is problematic because of the reasons detailed above. Interrogation is often used as a substitute for a proper investigation of the cases, a fact which exposes the suspects to mistreatment. An interview with X,⁶⁶ a member of the mukhabarat, revealed that the G.I. tends to target people who regularly go to Israeli settlements. The smallest contact is enough to raise suspicion: X told us about the case of a man who went to a settlement and had a drink with an Israeli. He subsequently was summoned by the GI for interrogation.

From the testimonies and other information obtained during this research, it appears that the “charges” – or rather the confessions that are obtained – of collaboration often are used as a posteriori justifications for arrests undertaken without any solid basis. In a testimony collected by PHRMG A.L. stated: “during the interrogation, interrogators would present me with all sorts of charges and ask me to pick one: Killing Hani Abed; participating in the Palestine Mosque massacre; killing the six martyrs in Jabalya; killing Ahmad Abu Rish; etc.”⁶⁷ The family of K.W.⁶⁸ also reported that he was given a list of charges and asked to pick one. Worse, A.S. recalls the severe beatings he underwent after having been arrested by the GI: “I was begging them to press any charges against me and I would confess. Ziad [the interrogator] told me: 'when we wear you down, we will tell you what we want from you.' - - - After the eighth day, they interrogated me on collaborating with Israel.”⁶⁹ In the case of the “al-Khader nine,”⁷⁰ charges of murder were filed by the Bethlehem prosecutor Ahmed al-Toubasi against the nine defendants only on 5 December 1996, although the defendants were arrested between 11 May and 3 June 1996 by the Military Intelligence, more than six months earlier.

Because of the Oslo agreements, the Palestinian authorities now distinguish two categories of collaborators. As explained by Khaled el-Qidrah, people who continued collaborating with Israel after 4 May 1994, the date of the signing of the Interim Agreement, can be prosecuted, according to the Palestinian interpretation of the Interim Agreement. People that collaborated with Israel before 4 May 1994 are “taken” rather than arrested, since no formal charges are ever brought against them, and they are never put on trial because of the provision of the Agreement preventing prosecution of the collaborators.⁷¹ The Attorney-General of the State Security Courts therefore admitted that people sit in jail without trial, but explained it by the need to protect them from the population that might seek revenge by more radical means. In his words, this procedure is the only way to balance the needs of the society for justice and the constraints of the Interim Agreements. Obviously the right to fair trial has no place in this equation: alleged collaborators have no chance to have a trial that would clarify whether the charges they face are really valid. Moreover, it became clear in the course of this research that the society does not systematically seek retribution.⁷²

3. Treatment of detained “collaborators”  

From the testimonies gathered by human rights organizations, it seems alleged collaborators are almost invariably tortured, especially during the first phase of the interrogation. Detainees report numerous forms of torture, in particular severe beatings, shabeh,⁷³ deprivation of sleep, putting a sack over the head, etc. The following are excerpts from testimonies gathered by PHRMG from alleged collaborators. The date in parentheses refers to the approximate time of interrogation.

• At first, they were beating me without interrogating me. I was handcuffed and the bag was over my head. They beat me with canes and hoses. This lasted from 10 in the evening until 8 in the morning the next day, continuously. - - - They took off my clothes, and every hour on the hour they would take me to the bathroom and place me under a cold shower. It was wintertime in March. Then they would take me back and beat me up again. When they would start I would scream so loudly because it hurt so badly after the shower. - - - They would place a bag over my head and my hands would be tied to my back. They would push me to the ground on my stomach and I was naked most of the time. One of them would sit on my body and three others would sit on my legs and waist. The third would close the bag tightly over my head after they all hold me down. They would beat me continuously on my behind and on my knees from the back. I could not stand the pain. I was going crazy (1995).⁷⁴

• After half an hour, they started interrogating me. I received unbelievable beating from them, they tortured me very severely, deprived me of sleep for 10 days, covered my head with a dirty bag. They would even put the gun in one's (prisoner's) mouth threatening to shoot and kill him. All that and I didn't know why or what was my charge. They broke my leg, and didn't take me to see a doctor for 18 days, they even beat me with my leg broken (1995).⁷⁵

• Sometimes they would take me to the slaughterhouse early in the morning. I was blindfolded and handcuffed. They used to place me in the corner and everyone who was entering and leaving would take his turn at beating me up. They asked me to speak. They uncuffed me but kept the bag on my head. And they asked me to start exercising. I was ordered to make a side split, and place my hands on my head, bring my whole body up and down. I was screaming from the pain and exhaustion. - - - The shabeh was practiced on me for countless nights and days. All I saw was chains, locks and chairs. They used to hang a prisoner from his hands from the back, then take the chair away from under his feet (1994).⁷⁶

• Then they lifted my arms towards the ceiling and tied them with a rope which was in turn tied to an iron hook. My whole body weight was on my toes that barely touched the ground. I was in that position for two hours. After I screamed my lungs out, they tied my hands to the back and changed the shabeh position. All this was accompanied by severe beating with hoses, hands and feet, on all my body parts. On another occasion, they were pressing my testicles. I was screaming like crazy from the pain. I even fainted twice. One of them held my penis and tried inserting a pen in the hole. I screamed (1995).⁷⁷

• They took me into a place and took off all my clothes. They humiliated me. One of them was holding a ruler and lifting my penis with it. Then they made me stand on one leg completely naked for a whole day. They beat me on my back with sticks. - - - After that they tortured me with electricity. My body was shaking and beating against the wall. I was blindfolded. They used to place an electric cable between my index and thumb, and at other times on my arm and legs, my back and chest. They did that three to four times every day. This lasted for a month and a half. One of them was grabbing my testicles and pressing them. I used to completely faint every time (1996).⁷⁸

• In the car, they blindfolded me and tied my hands and started beating me up with their fists and elbows. . . . They cursed me and broke one of my back ribs. The beating went on until we reached al-Saraya prison. Then they started beating me again without reading my charges. They were eight men, four of them constantly beating me up. They used an electric appliance to shock me. Every time they used it on me I jumped out of my place. This machine is usually used to drive cows in slaughterhouses. They took off my clothes and beat me up with hoses all over my body. Then they poured cold water on me and took me outside in the cold air with my eyes still blindfolded. This lasted for one and a half months. They would put me in the cell for a day or two and at night they would constantly torture me. Sometimes it took place at midnight and sometimes at 3 in the morning (1995).⁷⁹

• When I went to the bathroom they would ask me to run back to my cell. If I missed the cell I was in, they would beat me up. For three days in a row, they took us out in the middle of the night, placed bags over our heads and asked us to walk. If we bumped into each other, they would beat us up (1995).⁸⁰

• They made him sit on hot cups of tea, until his feet started bleeding. They also burned his body in several places using hot spoons (1997).⁸¹

• For the first five days in Tulkarem prison, they interrogated and tortured him very severely. They tied his hands and legs, made him lie on his stomach, and beat him with sticks, wires and hot iron bars. They also put his dirty underwear into his mouth, and made him go up and down the stairs for hours. . . . They also beat him very badly because he would not tell them what he told his relatives when they came to visit him (1998).⁸²

Prisoners at prayer in al-Saraya prison, Gaza  Photo by: PHRMG

By the end of December 1997, some 18 detainees were killed while in PA police custody – one of them, 'Azzam Muslih, was an American citizen. And while Yasser Arafat is supposed to be conducting a war against terrorism, none of those eighteen were charged with terrorist acts against Israel. Quite to the contrary, they are typically charged (after their deaths) with such crimes as collaborating with Israel and selling land to Jews.⁸³

In December 1997, PHRMG reported on 18 people who died during custody.⁸⁴ A disproportionate number of them seem to have been accused of collaboration. The most recent data show a total of 23 deaths in custody since the establishment of the PA, including two cases in 1998, two cases in 1999, and one by July 2000. In the majority of these cases, death occurred in the first weeks of detention, pointing once again to the critical phase of interrogation. Furthermore, of these 23 cases at least 12 cases were clear cases of alleged collaboration or land dealing, although the reasons for detention often are difficult to determine absent any official charges. This ratio contrasts sharply with the estimated 22,5% alleged collaborators held in PA jails.⁸⁵ In an additional case, the victim, Nahed Dahlan, is thought to have denounced collaborators who enjoyed good relations to the PA and had been arrested to force him to withdraw his statement. No one particular security force appears to be disproportionately responsible for the killings. The number of deaths in custody has decreased since 1997.

The most recent case occurred on 6 June 2000. Khaled Mohammad Younis Bahr was arrested on 25 May 2000 by the PSS in Hebron district. His father was prevented from visiting him until the day he learnt of his son's death. Relatives who saw the body reported that clear signs of torture were visible, although the official autopsy revealed “no signs of physical violence whether on the skin or underneath it”. It was initially thought that Khaled's arrest was related to tax fraud. Sources however told the PHRMG that he was formerly employed by the Civil Administration in the transportation department, so he may have been held as a security prisoner on charges of collaboration.

These statistics and the large number of alleged collaborators among the cases of deaths in custody point to two possible conclusions: either collaborators are more vulnerable to harsh treatment by the security services, or collaboration is a handy label to make death in custody “acceptable” to both the public and the authorities, and therefore avoid prosecution and criticism.

C. Extra-judicial killings

In May and June 1997, four land dealers were found dead: Farid Bashiti, Harbi Musleh, Ali Jamhour and Hakam Qamhawi.⁸⁸ Farid al-Bashiti was last seen in a hotel in East Jerusalem when he drove off to Ramallah to meet a person who wanted to buy land from him. His body was found later that day: he had been shot in the head. Harbi Ibrahim Mohammad Musleh left his home near Ramallah in the morning of the 17 May 1997 to go to the village of Ein Yabroud. The police came in the afternoon to ask his son to identify his body: Musleh had four bullets in the head. Ali Mahmoud 'Aref Jamhour left his home in Shu'fat camp (East Jerusalem) on Saturday 31 May 1997 to go for a driving lesson. His body was found later that day with two bullet wounds, one in the head and one in the chest. Linda Minohen, spokesperson of the Israeli police, reported that the Palestinian police had questioned Jamhour the previous week, and told him that he might face the same fate as Farid Bashiti, the land dealer who had been killed by unknown persons three weeks earlier.⁸⁹ Although officials from the PA informed the family that they had no evidence proving that he sold Arab land to the Israelis, Jamhour was a known land dealer, and rumors circulated about an Arab house that had been sold six months earlier to an Israeli settlement organization.

Although denying the involvement of PSS Head Jibril Rajoub, Yair Yitshaki, head of the Israeli police in Jerusalem district, said that these attacks on land dealers were not the result of individual actions, but derived from orders of high officials in the PA.⁹⁰ A recent report indicated that “the Israeli security services have in their possession a list of 42 Palestinian land dealers who are being threatened by the Palestinian security services because of professional connections with Jewish land purchasers”.⁹¹ The PA strongly denied these accusations: “The Minister of Justice Freih Abu-Meddein accused Israel of being involved in the killing of land dealers who sold land and properties to Jews. He added that Israel is getting rid of its customers [collaborators] after using them to serve its purposes, and then it tries to harm the PA by accusing it of doing that.”⁹² This statement did little to erase the suspicion that these were cases of extra judicial killings by the PA.⁹³

Indeed, these killings followed a declaration on 4 May 1997 by the Minister of Justice Freih Abu Middein that land dealers would be subjected to the death penalty. Hence, the killings corresponded to a quasi-official policy. Instead of denying the accusations that it was behind the killings, the PA issued statements condoning them. It must be recalled that the summer of 1997 was a period of high tension between the PA and Israel, with the latter building the settlement of Har Homa, on the outskirts of Jerusalem. Abu Middein reportedly claimed that severe measures had become necessary, because “after what happened at Jabal Abu Ghneim [Har Homa] it has become clear that the Israeli government looks at all property sold by Arabs to Jews as conferring Israeli sovereignty.”⁹⁴

D. Disappearances

A disappearance is a doubly paralyzing form of suffering: for the victims, frequently tortured and in constant fear for their lives, and for their family members, ignorant of the fate of their loved ones, their emotions alternating between hope and despair, wondering and waiting, sometimes for years, for news that may never come.⁹⁵

As emphasized by the Inter-American Court of Human Rights in its landmark Velasquez-Rodriguez decision,⁹⁶ disappearances constitute a blatant arbitrary deprivation of the right to liberty and due process, they constitute cruel and inhumane treatment, and a violation of the right to life. In Palestine, disappearances fortunately never reached the level of state policy practiced in many Latin American States. Two cases occurred in 1997, and we shall examine one of them in detail, not only because it remains unsolved to this day and is linked to allegations of land dealing, but because the High Court in Ramallah recently issued a ruling on it.

Shafiq 'Abd al-Wahhab, a 52 years-old real estate agent from Ramallah, father of five children, was the first one to disappear from Military Intelligence detention center. As quoted in the 1997 PHRMG Annual Report:

On 21 June 1997, a man who identified himself as a member of the MI [istikhbarat] arrested Shafiq Abd al-Wahhab at his real-estate office in Ramallah, ostensibly to take him in for questioning at the MI headquarters in Ramallah. He gave his name as “Hilmi”. Abd al-Wahhab has not been seen since. Strong suspicions exist that he was “disappeared” by MI officers based in Ramallah. The next day, June 22, Abd al-Wahhab's wife, Majidah, filed a complaint at the police station in Ramallah, demanding to learn where her husband was being held. She is employed in her husband's real estate office and was present during the arrest. A few days afterwards, she went to the MI headquarters to search for Abd al-Wahhab again. She saw the MI officer “Hilmi” and called out to him “Where is my husband?”. MI personnel forced her to leave immediately. On 5 July 1997, urgent requests were sent to the Ramallah District Prosecutor, the Minister of Justice, the Chief of Police and President Arafat, demanding that Abd al-Wahhab be located. . . . On July 7, the President's office established a special committee to look into the disappearance of Abd al-Wahhab. Additional letters and appeals have been sent again . . . No answer to any of these appeals has been received. The special committee has not responded.⁹⁸

This decision is problematic in several respects. In 1988, in the above-mentioned Velasquez-Rodriguez case, the Inter-American Court of Human Rights clarified the responsibility of the State in cases of disappearances. It concluded that the standard of proof in such cases ought to be lower since the disappearances are characterized by the state's or security service's attempt to suppress information about the kidnapping or the whereabouts and fate of the victim. It seems that in the case of 'Abd al-Wahhab, the Palestinian High Court of Justice did not take this into account, and, in dismissing the case, simply relied on the testimony of the Governor of Ramallah who denied that 'Abd al-Wahhab had ever been arrested.

According to the Declaration on the Protection of All Persons from Enforced Disappearance,⁹⁹ however, an enforced disappearance occurs when “persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups, or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.” The authorities' denial of an individual's arrest is in fact characteristic of an enforced or involuntary disappearance. Indeed, despite the ruling of the Ramallah court, the UN Working Group on Enforced Disappearances continues to list the case in its annual report to the UN Commission on Human Rights, considering it an unsolved instance of disappearance.

4. Legal remedies

   A. Appointing a lawyer

Security prisoners face numerous difficulties in obtaining legal assistance. Many lawyers end up abandoning cases when they realize that they can do nothing for the prisoner. In one testimony, the wife of T.H.¹⁰⁰ told PHRMG that her husband asked her to hire a lawyer in Gaza to defend him. She gave the lawyer 400 dinars, and he had the case for one whole year without taking any legal steps. In the end he abandoned the case and returned the money. The wife of M.R.¹⁰¹ also went to see a woman lawyer to defend her husband. The lawyer took NIS 100.—and went to see the then civil Attorney-General Khaled el-Qidrah, but she could not do anything to help her client so she returned the money and abandoned the case. W.H.¹⁰² was arrested in 1995 by the G.I. on suspicion of collaboration. In 1998 his family hired a lawyer, who accepted the case and asked for an advance of 300 Jordanian Dinars. The lawyer was unable to make any progress in the case of W.H., and asked for more money to continue the proceedings. This time the family could not afford to pay. In his testimony to PHRMG, F.S., another suspected collaborator, claims that the authorities prevented him from hiring a defense lawyer.¹⁰³

Other lawyers simply refuse to take the cases of political or security prisoners. Some argue it is because they know they can do nothing. In the best of cases, the files are transferred to human rights organizations such as the Palestinian Center for Human Rights in Gaza. In one testimony, the wife of M.S.¹⁰⁴ went to see a lawyer, but he asked for so much money that she couldn't afford his services. When she asked him why he was so expensive, he answered that because it was a case of collaboration, no other lawyer would accept the case anyway. Indeed, other lawyers turned the offer down and the prisoner currently has no defense lawyer. But another explanation for the reluctance of lawyers to take up collaboration cases could be that in doing so they would harm their image in front of the PA. “Collaboration” seems to be a highly contagious accusation, and understandably no one wants to get infected by defending those people.

B. Visiting the detainees

A prisoner receiving a visit from his family  Photo by: PHRMG

Let us assume that a lawyer has been appointed and actually follows the case. Can he then meet with his client? Mohammed Ayyoub, a lawyer in Ramallah, assured the PHRMG that he had no difficulties visiting security prisoners.¹⁰⁶ Usually the story is different. Lawyers can visit criminals quite easily, but problems often arise for political and security prisoners. In many testimonies, the families report that the lawyer they hired was prevented from visiting his client. As mentioned by Amnesty International, most security prisoners are held incommunicado, without access to lawyers or families, and this incommunicado detention continues sometimes weeks, months or even years after their interrogation has ended.¹⁰⁷ It is worth mentioning in passing that even families encounter difficulties in visiting prisoners. Visits are usually forbidden during the interrogation phase, and even after that phase, often a policeman is present during the visits, preventing the prisoners from speaking freely. On the other hand, once visits from the families are authorized, it seems that these can take place even outside visiting hours, after payment of NIS 10.—for every two visitors.

C. Judicial procedures

This section examines two different types of trials: trials for charges of collaboration, and judicial review of detention. This requires first a brief overview of the system of courts in the PA. Civil courts in the West Bank and Gaza have jurisdiction over all disputes – civil and criminal, including suits brought by or against the government – except those disputes subject to religious law or to special courts. These “special courts” are on the one hand the military courts, and on the other hand the State Security Courts. Military courts are regulated by the PLO Revolutionary Code of Penal Proceedings of 1979.¹⁰⁸ Legally, they can only try members of the military, but these courts occasionally transgress the jurisdiction of the civil judiciary by trying civilians as well. Human rights organizations have pointed out several shortcomings of these courts regarding the right to a fair trial. Even more problematic are the State Security Courts, created by Presidential decree on 7 February 1995 on the basis of old British, Egyptian and Jordanian laws. These courts are responsible for trying crimes affecting both internal and external security, and usually deal with opponents of the peace process. It should be noted that civil courts do review cases falling within the jurisdiction of the State Security Courts if these fail to deal with the files for a long time.

Civil courts have reviewed a few cases of collaboration, including the “al-Khader nine.” Interestingly however, although arrested in connection to a series of crimes allegedly ordered by the Israeli Shin Bet, the nine suspects were officially charged with deliberate and attempted murder,¹⁰⁹ i.e. criminal charges. In this case, the Ramallah Court of First Instance found that the confessions had been obtained under duress, and therefore invalidated them and ordered the release of the suspects.¹¹⁰

As seen above, the procedure relating to security prisoners (alleged collaborators) was changed six months ago, and these cases are now dealt with by the State Security Courts, under the responsibility of Attorney-General Khaled el-Qidrah. Five or six cases have already been tried, both in Gaza and the West Bank, and relating to both so-called spies and land dealers.¹¹¹ The decisions of the Court are difficult to obtain, and the PHRMG does not know what the sentences have been. However, at least one case of collaboration has been tried by the State Security Court before they assumed jurisdiction over these cases. On 26 November 1997, Dr. Fathi Subuh¹¹² was taken to the State Security Court on “security” charges and released on bail of 5'000 Jordanian Dinars (USD 7'100), with an order to report to the police every day.

Military courts have also dealt with cases of collaboration. Fawzi Sawalha, an officer of the Palestinian Force-17, was arrested on 29 June 1997 by the mukhabarat together with three other suspects, Khaldun 'Uthamneh, Taher Jamlan and Naser Hamadneh. Based on the 1979 PLO code, the numerous charges brought against the four suspects included “treason and collaboration.” Fawzi Sawalha in particular was accused of being the leader of a gang that “terrorized, abducted and ill-treated local civilians,” reportedly under orders from the Israeli Shin Bet.