C.  Background10

Over the years, and especially during the two intifadas,11 settlers (and other Israelis) and Palestinians have frequently clashed in the Occupied Territories. Attacks by Palestinian civilians on Israelis have involved stones, knives, firebombs and, increasingly, firearms.12   The vast majority of attacks on Palestinians by Israeli civilians have involved the use of firearms. Most of the weapons used by the settlers were received from the Israeli army. Yet, the army’s supervision of settlers carrying weapons has never been clear. 13

After the 1967 Six Day War, Israel occupied the West Bank and Gaza and the Israeli army became responsible overall for maintaining law and order in the Occupied Territories. The territories were governed by Military Rule and “security offenses” were processed in military courts. Israeli settlements began to be established in these Territories immediately after the War,14 and have been encouraged ever since by both Labor and Likud Governments, even after the Oslo Accords, which specifically provided that “[n]either side shall initiate or take any step that will change the status of the West Bank and Gaza Strip pending the outcome of the permanent status negotiations.”15 In December 2000, there were about 199,000 Israeli settlers living in approximately 145 settlements in the West Bank and Gaza, and another 200,000 living in occupied East Jerusalem. 16   In 1979, the settlements were incorporated into the Israeli local government system of regional councils. The international community, however, views Israeli settlement activities as illegal.17

 Since the start of the second intifada, some settler leaders have warned that settlers may “take the law into their own hands,” because of their sense of insecurity and perception that the Israeli army is not doing enough to protect them from Palestinian attacks.18    The armed  “security patrols” that settlers presently operate along roads outside settlements are not subject either to the army or the Israeli Police Force, although they clearly require the knowledge and at least tacit consent of the armed forces.19 Operating without accountability to any state body, these private armed forces present a danger to the rule of law, which cannot be exaggerated20 and, as the High Court of Israel21 has recognized, “[t]he rule of law is fundamental to… protecting human rights.”22    Furthermore, private security patrols undermine the crucial distinction between combatants and non-combatants, upon which international humanitarian law, such as the Geneva Conventions, is based.

Israel remains obligated under international law to protect the lives (as well as the persons and property) of all Palestinians under its control.23   However, in 1995, responsibility for providing law and order in the West Bank and Gaza was divided between Israel and the Palestinian Authority (PA). The Occupied Territories were divided up into areas A, B and C, with Israel having total security responsibility over area C, as well as overall security responsibility for the protection of Israeli citizens and confronting the threat of terrorism in area B, and the PA having security responsibility over area A. 24    

Palestinians committing crimes in areas A and B generally fall under the PA’s criminal jurisdiction; they are investigated by the Palestinian police and tried in Palestinian courts.25 However, Palestinians committing crimes in area C, as well as all Israeli citizens committing crimes anywhere in the Occupied Territories,26 come under Israeli criminal jurisdiction.27 Since most Palestinian attacks against settlers occur in area C, both Palestinians who assault Israelis and Israelis who assault Palestinians are generally tried in Israeli courts. However, Palestinians are tried in military courts under military orders,28 while Israeli settlers are tried under Israeli civilian penal law in regular criminal courts. Civilian criminal courts29 come under the jurisdiction of the Ministry of Justice, while military courts come under the Ministry of Defense.

The resulting reality is that two legal systems operate side-by-side in the Occupied Territories – one for Palestinians and one for Israelis.30 The existence of these two different (and unequal) legal systems institutionalizes – and also obscures –discrimination in the treatment of Palestinians31 and Israelis in the criminal justice system.32   Israelis and Palestinians accused of identical offenses are tried according to different laws. Moreover, the laws that exist are often applied in a discriminatory manner.

Since Israeli civilians who kill are tried in Israel, under the Israeli Penal Code, they are granted the full panoply of rights guaranteed by Israeli civilian law,33 while these rights are absent from the military justice system applying to Palestinians residing in the same territory.  Disparities and inequities exist at every stage of the criminal justice process.34 The period of detention of a suspect before being brought before a judge, the right to meet with an attorney, the defenses available to a defendant at trial, the maximum sentence set by law, and release on parole before serving a full sentence – all of these differ in the two systems of law, with the Israeli civilian system35 granting more extensive rights and defenses.