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Legal
Framework
A. Obligations of the Occupying Power
Israel is in breach of its obligations under the
Geneva Conventions for its methods of recruiting collaborators. Art. 31 of
the (Fourth) Geneva Convention Relative to the Protection of Civilian
Persons in Time of War of 12 August 1949 clearly states:
No
physical or moral coercion shall be exercised against protected persons,
in particular to obtain information from them or from third parties.
Jean Pictet’s Commentary to this article further
states:
The
prohibition laid down in this Article is general in character and applies
to both physical and moral forms of coercion. It covers all cases, whether
the pressure is direct or indirect, obvious or hidden (as for example a
threat to subject other persons to severe measures, deprival of ration
cards or of work). Furthermore, coercion is forbidden for any purpose of
motive whatever.
Thus, under international humanitarian law,
Palestinian dependency on services provided by Israel cannot be used as
leverage to obtain information, nor can any other form of blackmail.
Furthermore, the absolute form of the prohibition means that pressure to
collaborate cannot be justified under any circumstances, not even the
likelihood of violent attacks.
B. Obligations of the Palestinian
Authority
There is a specific provision contained in the
interim peace agreements between Israel and the Palestinian authority
designed to prevent the prosecution of collaborators. The problem of
collaborators was first mentioned in the Agreement on the Gaza Strip and
the Jericho Area of 4 May 1994 (also known as the Cairo Agreement),
Article XX.4, which states:
With the assumption of the Palestinian authority, the Palestinian side
commits itself to solving the problem of those Palestinians who were in
contact with the Israeli authorities. Until an agreed solution is found,
the Palestinian side undertakes not to prosecute these Palestinians or to
harm them in any way.
The provision was restated as follows in the
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip
of 28 September 1995 (also know as Oslo II or the Taba Agreement), Art.
XVI.2:
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.
The commonly accepted interpretation of this
provision is that alleged collaborators are not protected from prosecution
if they still maintained contact with the Israeli authorities after
the signing of the interim peace agreements, on 4 May 1994 (Gaza-Jericho
agreement) or 28 September 1995 (Oslo II). Numerous people where indeed
held by the different Palestinian security services, never officially
charged or tried, but branded as “security prisoners,” i.e. collaborators.
This means for the purpose of this report, that Palestinians accused of
having provided Israel with information on Palestinian leaders who were
subsequently assassinated during the present intifada can indeed be
prosecuted.
Such suspects are,
however, protected by standard human rights guarantees, in particular, the
right to life (Article 6 ICCPR,
Article 3 UDHR),
the prohibition against torture or other cruel, inhumane and degrading
treatment (Article 7 ICCPR, Article 5 UDHR), the right to liberty and
security of the person (Article 9 ICCPR, Articles 3 and 9 UDHR) and the
right to due process of law (Articles 14-16 ICCPR, Articles 6-11 UDHR).
Although the Palestinian Authority cannot yet be considered a State with
all the duties and prerogatives that entails, it is definitely bound by
international human rights law. This is what the President of the
Palestinian Authority has declared numerous times, what the draft
Palestinian Basic Law states,
and what is incorporated in the interim Israeli-Palestinian agreements.
Hence the Palestinian Authority has a duty to protect its citizens from
violence, and to respect all due process guarantees of fair trial
contained in the domestic criminal law.
An analysis of
Palestinian domestic law is very complex since every ruler of all or part
of this land for the past century has left its imprint in the legal
system. “Collaboration” is a crime recognized in the 1960 Jordanian Penal
Law applicable to the West Bank civil courts,
and since 1979, the Palestinian Revolutionary Military Code, also
applicable to military courts (that also occasionally tries civilians.)
In both cases, the recommended sentence is the death penalty.
However, a procedural change introduced a few months
before the eruption of the al-Aqsa Intifada transferred cases of
collaboration to the jurisdiction of the State Security Courts for the
West Bank and the Gaza Strip, established in 1995. These courts formally
use the same penal codes as civilian courts, although the law is almost
never referred to in judgments. In fact, these courts have been widely
criticized by human rights organizations as violating some of the most
basic human rights. Suspects are normally informed of their charges only a
few minutes before the trial, with insufficient details; they can rarely
choose a defense lawyer or call witnesses; trials are expedited and take
place at night, sometimes in less than an hour, and there is no right to
appeal: only the President of the Palestinian Authority can approve a
judgment or issue a pardon.
In fact, it is widely agreed that the main purpose of these very
undemocratic courts is to respond to pressure by Israel to try those in
opposition to the Oslo process, or to pressure from the Palestinian public
to try alleged collaborators.
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