On September 26, 2005 the Israeli occupation forces launched their campaign of arrest and detained 450 members of the Hamas party. These members were mostly involved in the 2006 PLC elections, either through active campaigning or who were taking part in the municipal elections in the various West Bank cities. The majority of those detained were kept in administrative detention for different periods. Some were released on the day of the election or a couple of days before or after it. Some of them were elected while in prison. One PLC member who was elected while in prison was Mr Wael Husseini – a Jerusalemite from the ‘Change and Reform Party’. After that party’s victory Wael was released and was able to work until the 29th of June 2007.
During the elections the Israeli authorities banned the candidates from holding election campaigns inside Jerusalem. Rallies and public meetings were prohibited. Those who violated the order were arrested. On January 3, 2006 for example, Dr. Mustafa Barghouthi, head of the Independent Palestine coalition list, was arrested in East Jerusalem whilst on a tour of the Old City as part of the Legislative election campaign.
On the day of the election, the ballot boxes were held in Israeli Post Offices inside Jerusalem. Israeli police officers were present to monitor the proceedings of the election. At the end of the day the Israeli authorities transferred the ballot boxes to the Palestinian Authority.
At the beginning of June, Palestinian militant groups took Corporal Gilad Shalit as a hostage at the Kerem Shalom crossing in the Gaza Strip. After Shalit’s capture, on June 12, Israel launched a series of military operations which left almost 200 Gaza residents dead and the territory besieged. Reprisals and collective punishment against civilians after the Kerem Shalom operation included the West Bank as well. The Israeli government announced after the operation that Palestinian members of parliament and cabinet ministers have no immunity. Israel threatened to detain them as a bargaining chip to win the release of the Israeli soldier imprisoned in the Gaza Strip.
In fulfillment of these threats, IOF conducted wide scale detention operations against scores of Hamas supporters, including cabinet ministers and members of the PLC elected on the platform of the pro-Hamas “Change and Reform List.” On 29 June 2006, the Israeli Occupation Forces (IOF) conducted a series of incursions throughout the West Bank, with the exception of Jericho. IOF surrounded the places of residence of a number of Palestinian government ministers and PLC members. IOF detained 8 ministers and 26 PLC members, in addition to many other political leaders of Hamas. A few days later, IOF detained the second deputy speaker of the PLC, Dr. Hasan Khreisha, as he was returning to the West Bank from Jordan, along with other PLC members. Wael Husseini was also one of those arrested.
All of the detained were brought to Ofer and interrogated. They were kept in prison for 1-2 months in different interrogation centres across the West Bank. After interrogation, charge sheets were submitted against most of the detained PLC members. The majority of them were accused of being a member of the ‘Change and Reform Party’ (which the Israeli authorities argued was affiliated to Hamas and was illegal according to the military orders). The rationale behind the second accusation was that since the candidates were working as PLC members in the name of the party they were thus supporting and giving aid to the party.
The offenses regarding an unauthorized association are specified in the Emergency Defense Regulations that Israel has applied since the founding the state and which date from Mandatory times. Israeli law recognizes the extraterritorial application of these offenses given their definition as external offenses against the security of the state and its citizens. According to the interpretation of the relevant provision, anyone holding a position in an association that Israel classifies as illegal, and anyone who is active in such an association, even a person who is only registered as a member and lives anywhere in the world, is an offender against whom criminal proceedings may be initiated in Israel. This provision applies even if the defendant has not committed any other act that endangered the state or its citizens. Such an interpretation is unjustly broad, and unacceptably obstructs the freedom of association and freedom of conscience (1).
In the pre-trial the first instance court decided to release the candidates on bail. The Military Prosecutor appealed and the appeal court upheld the decision of the prosecutor to hold the candidates in prison until the end of trial. When the trial commenced – the first argument for the defence was that the Israeli authorities were unable to provide evidence to prove that every PLC member who belongs to the ‘Change and Reform Party’ should automatically be considered a Hamas member. On the contrary, Adv Sahar Francis argued that many members of this party were not members of Hamas; some members were even Christian.
PLC member Wael Husseini for example stated that he was a member of the ‘Change and Reform Party’; however, he was in no way affiliated to Hamas. He even argued that if he had known it was affiliated to Hamas he would not have run for election at all.
The Military Court in the first instance decided to accept Wael’s argument and he was found innocent. However, the military prosecutor accused Wael that because he was aware that some of the members in the Change and Reform Party belonged to Hamas and he accepted to run with them, it meant that in the end he did in fact support an illegal party. In the end, the military court sentenced Wael to 23 months imprisonment and a fine of 8,000 NIS ($1500).
Since Wael had already spent 23 months in prison, the defense lawyer argued for his release. The military prosecutor, however, appealed and requested the court to keep Wael until the end of the appeal. The appeal court upheld the decision and found that anyone who was a member of the change and reform party was automatically a member of Hamas. Wael’s sentence was thus sentenced to an additional to 3-5 years in prison with 1 and a half years suspended sentence for 5 years from his release.
Indictments were filed against the other senior officials. Approximately 40 of the PLC members were charged. Most of the indictments were for “membership,” “activity,” and “holding a position” in an “unauthorized association.”
There are a number of discrepancies regarding the actions taken by the Israeli authorities. Firstly it must be stressed that the PLC members were chosen in elections that Israel allowed the Palestinians to hold and served in their positions for months during which the Israeli authorities did not even suggest they constituted a danger.
In February 2007 the Israeli authorities declared the ‘Change and Reform’ an illegal party. This was one year later after the elections had taken place.
In addition, the State of Israel allowed the elections in the Palestinian Authority in which the arrested officials were elected, and did not oppose the participation of the Change and Reform Party, which identifies with Hamas, or of any other list, in the elections. By so acting, the Israeli authorities gave the impression that they do not consider the list an “unauthorized association” membership in which and activity in which constitutes a criminal offense. Thus, Israel is now prevented from taking criminal actions against anyone who relied on Israel’s representation. Furthermore the timing of the waves of arrests indicates that the arrests were intended to put pressure on the Palestinian people and its leadership. Although the authorities have discretion in enforcing the law, it is clear that, in this case, the decision to change its policy and initiate proceedings for a dubious offense that until then not been enforced was not based on material and relevant considerations. Rather, they were political and completely unrelated to the objectives of the criminal law (2).
The Israeli policy of detaining detention of many members of the Palestinian Legislative Council (PLC) has adversely disrupted PLC normal functions. At the time of reporting, the Israeli army continues to detain Dr.’Aziz Dwaik, PLC Speaker; Mr. Mahmoud Al Ramahi, PLC Secretary; and another 36 PLC members. Cases of these detained PLC members are still suspended. Some of the officials are being held in administrative detention and some have been indicted. In all the cases, the denial of their liberty was carried out in violation of law and in shameful disregard for their rights and for the rights of the persons they were elected to represent.
2. Ibid 1.