FREE THE JERICHO SIX

Violations of Palestinian Law

The nature of the trial, its conduct and authority all violate Palestinian law. Below is a report prepared by a team of Palestinian human rights NGOs which examines the status of Palestinian military courts and this trial according to current Palestinian law.

Military Courts and Palestinian Law
According to the Law for Establishing Civil Courts no 5. for the year 2001, which has been applicable to Palestinian areas since 6 October 2001, the first article states "that civil courts establish their duties according to the articles of the Judiciary Authorities Law and this law." The second article states "Civil courts in Palestine have jurisdiction over all disputes and crimes except for those excluded by special legal reference. Judicial authority for all and the principle of the courts are guaranteed by law." Article 39 cancels "Law no. 31 for 1940 which was issued in Gaza governorate and Establishment of the Courts Law no. 26 for the year 1952 which applies to the West Bank." This article also annuls any laws that "… are in conflict with this law." Article 23 states that the "Supreme Court consists of an Appeals Court and a High Court of Justice." Article 30/4 states that the Appeal Court is authorized to examine any request submitted to it according to any other law." Article 33/3 states that High Court of Justice is authorized to examine appeals against imprisonment and is also able to issue orders to release persons held illegally. Article 37 articulates that the High Court is temporarily responsible for the work related to the administrative courts and legislative courts until their establishment by law, unless this work falls under the jurisdiction of another legal body according to the applicable law.

Referring to applicable laws in Palestine we do not find any law or article or legal reference excluding specific crimes or specific disputes from the Civil Courts.

In neighboring Arab countries and other countries we find special laws to organize the military judicial system or police and state security courts. This is not the case in Palestine despite the fact that the argument could be made that decisions and presidential orders are alternatives to these laws until these courts are formulated. However, there is nothing to support this argument legally except what is found in the Draft Basic Law. This law is not currently in place because it is waiting for the signature of President Arafat despite the fact it has been ratified in three readings by the Palestinian Legislative Council (PLC). Article 60 of this law states "The chairman of the Palestinian National Authority can issue decisions with legal authority in urgent cases that can't be delayed. These decisions must be presented to the PLC in the first session after issuing these decisions. If this does not happen then their legal force is cancelled. If a presidential decision was presented before a PLC session and it was not adopted its legal force is also cancelled."

Even if the Basic Law was ratified and published and became applicable according to article 60, there are restrictions that can't be exceeded when issuing Presidential orders. Specifically, these decisions lose their legal force if not presented to the PLC in the first session and approved. Despite this, the State Security Courts in Palestine and the State Security prosecution have functioned for several years without presenting its decisions to the PLC. Furthermore, no laws have been enacted by the PLC to give these decisions legitimacy.

Referring to the Draft Basic law we find that Article 30 states that the judicial process is a guaranteed right for all citizens. Every Palestinian has the right to be tried before a civilian court. Article 88 from the Draft Basic Law states "The judicial authority is independent and the law establishing the court, its responsibilities and sentences are issued according to law." Article 92/2 states that "Military Courts are established by special laws and these courts have no jurisdiction or authority outside military matters."

The State Security Court was created in 1995 in accordance with order 59 of 1962, issued by the Egyptian Military Governor of the Gaza Strip. This decision was not presented to the PLC for ratification and there were no laws issued by the PLC to give it legitimacy. The creation of this court occurred without any urgent needs preventing it from being presented to the PLC. The PLC has convened many times since 1995 and yet there has been no ratification of the decision to establish the State Security Court even though it clearly contradicts article 39 of the Law for Establishing Civil Courts.

The Procedure of Penal Courts Law of 1979, issued by the PLO, is no longer applicable because of article 39 of the Law for Establishing Civil Courts. As mentioned above, this law annuls any law that contradicts the new law and has been in place since 6 October 2001.

The draft of the Judicial Authority Law, like the draft of the Basic Law, is not currently applicable.

Although the Law for Establishing Civil Courts is applicable, the High Court that is provided for in Article 23 has not been properly established. The Appeals Court in Ramallah and its counterpart in Gaza, which is known as the Supreme Court, are not the ones intended by the law. These two courts have been given the responsibilities of the Supreme Court of Justice through a written directive issued by the High Judge. This directive was not ratified by a decision from an authorized body or by the chairman of the Palestinian Authority. A legitimate appeals court has not been established and there is no indication that it will be in the near future.

Legal principles and international conventions
The Palestinian Declaration of Independence, the Draft Basic Law, the Universal Declaration of Human Rights as well as international humanitarian law emphasize the right to legal defense and legal representation. International conventions concerning economic, social, political and civil rights as well as international agreements related to criminal justice uphold these rights. The Palestinian Authority has committed itself to establishing a justice system that guarantees a respect for judicial procedures.