On 7 June 1967 the new Israeli occupying forces in the West Bank issued Military proclamation No. 1. It justified itself with the words ‘in the interests of security and public order’. Since that time, the Israeli authorities have issued over 2,500 such military orders, with enormous impact on Palestinian life. These orders serve as justification every time the Israeli authorities arrest a Palestinian in the Occupied Palestinian Territories (OPT). Issued by the Israeli Military Commander in the OPT, they provide the ‘legal’ basis for charging Palestinians with political offences and for bringing them before the Israeli military courts, which enforce these decrees and punish offenders with imprisonment and fines.
On 7 June 1967 the new Israeli occupying forces in the West Bank issued Military proclamation No. 1. It justified itself with the words ‘in the interests of security and public order’. Since that time, the Israeli authorities have issued over 2,500 such military orders, with enormous impact on Palestinian life. These orders serve as justification every time the Israeli authorities arrest a Palestinian in the Occupied Palestinian Territories (OPT). Issued by the Israeli Military Commander in the OPT, they provide the ‘legal’ basis for charging Palestinians with political offences and for bringing them before the Israeli military courts, which enforce these decrees and punish offenders with imprisonment and fines. They don’t apply to Israeli settlers living in the West Bank and Gaza Strip, who are governed by Israeli civil law.
There are approximately more than 1500 military regulations governing the West Bank and up until the Israeli withdrawal from Gaza in 2005 there were over 1400 military regulations governing the Gaza Strip. The military commander may issue new military regulations at any moment. Thus the issuance of new orders often remains unknown and become apparent only when they are implemented. Palestinians are often unaware that new military orders have been issued because they have not been made public or translated into Arabic. They are frequently revised, almost impossible to challenge, and can apply retroactively (1).
Once the interrogation phase is completed, Palestinian detainees from the West Bank are processed for trial, sentencing and imprisonment in one of the two Israeli military courts currently in operation in the OPT. Palestinian detainees from Gaza are tried in Israeli domestic courts, since Israel’s so-called disengagement from Gaza in 2005. These military tribunals are presided over by a panel of three judges appointed by the military. Most of the judges do not have long term judicial training and as such, the court procedures rarely fall within the required international standards of fair trial.
Within these military courts, military orders always take precedence over Israeli and international law. Israeli military courts refuse to apply international laws and conventions, and it is impossible to make any legal claims to protect individuals under military occupation. When international law is used, it is used in situations that favour the occupying power.
Military Order 1530 limited the trial process to two years before issuing an indictment. Prior to this, there was no time limit for the trial process. The period of time between the issuing of charges and the actual trial is often prolonged, with detainees sometimes waiting for months before being tried before a military court. In more frequent cases, if a charge sheet is not presented after interrogation, the detainee is transferred to administrative detention.
Language is an additional problem, since many Palestinians do not speak Hebrew, and translations or interpreters are rarely available within the military court system. There are also inevitable communication and language difficulties even between lawyer and client. As a result violations of Palestinian prisoners’ rights are routine, and often go unchallenged. Of particular concern is the continued practice involving Palestinian detainees being made to sign confessions written in Hebrew, a language few detainees comprehend. Once obtained, it is these confessions that constitute the primary evidence against Palestinian detainees in the Israeli military courts.
There are several stark discrepancies between Israeli law pertaining to Palestinian and Israeli detention respectively. For example, a Palestinian can, as of August 2003, be held in custody for 8 days before being brought before a judge. An Israeli citizen, however, can be held in custody for only a maximum of 24 hours before being brought before a judge.
A Palestinian can be held without charge, by order of a military judge, for an initial period of up to 90 days not necessarily continuously. This period can be extended for another period of up to 90 days by the legal advisor for the Occupied Palestinian Territories, via a military court of appeals (this form of detention differs from administrative detention, in which case no charges are brought against the detainee). An Israeli citizen can be held without indictment for an initial period of 15 days, which can be extended for only another 15 days.
In another example of discriminatory laws, whereas lawyer visits can be prohibited for up to 90 days after the day of arrest for a Palestinian detainee, the meeting between an Israeli detainee and his attorney can only be delayed for a total of 15 days.
As the maximum allowable sentences in civilian courts are considerably less severe than those permitted in the military tribunals, there are often significant differences in sentences passed for identical crimes committed by Israelis and Palestinians. For example, a Palestinian convicted of manslaughter by a military tribunal is subject to a maximum sentence of life imprisonment, while an Israeli convicted of manslaughter in a civilian court and sentenced to life imprisonment is imprisoned for a maximum of 20 years in most cases and, occasionally, at the most, 25 years.
The difference in sentencing structures is reinforced by rules in the two penal systems regarding the early release of prisoners. Under the Israeli penal code, criminal prisoners may be released after serving one-half of their sentences, whereas Palestinians judged under military rule are only allowed to appeal for probation after two-thirds of the sentence has been served. It should be noted that Palestinian detainees are rarely released early. Palestinians are divided and imbalanced before the law; they are governed under different penal codes and in different courts than Israelis, and application of the law is systematically prejudiced.
Targeting of Human Rights Defenders
Curfews and other forms of collective punishment inflicted upon the Palestinian community by the Israeli military occupation considerably hinder everyone’s work, including, among others, those attempting to collect information concerning human rights violations and verification. Human rights activists and organisations, constantly face the risk of arrest or closure the by the Israeli occupation forces.
Most recently on July 8, 2008, the Israeli authorities closed down the Nafha Society for the Defense of Prisoners and Human Rights, on the basis of a military order issued by the Israeli Army Commander in the West Bank. Legally established and registered with the Palestinian Authority in 2006, Nafha is one of several NGOs that represent Palestinian detainees in Israeli courts and advocate on behalf of Palestinians in Israeli prisons and detention centres. Indeed this is not the first time that Israeli authorities have targeted Nafha. On August 2, 2007, Israeli soldiers arrested Mr. Mohammad Bsharat, Nafha Executive Director, in Nablus, without an arrest warrant (2).
The treatment of Palestinian lawyers by the Israeli authorities has been characterised by a total lack of respect, ranging from a general harassment, to beatings and even arrest during the course of their duties. To practice in the Israeli High Court, lawyers must be members of the Israeli Bar Association. Currently, Palestinian lawyers are not recognized by the Israeli authorities and have no direct access to the Israeli judicial system. In addition to the ‘official’ restrictions placed on Palestinian lawyers, their treatment by individual members of the Israeli authorities further impede their abilities to discharge their duties to their clients.
The difficulties faced by lawyers in the exercise of their work are mainly related to the arbitrary nature of occupation and impunity. Palestinian lawyers from the OPT are not permitted any special travel privileges in order to defend their clients. They are subjected to the same travel restrictions as all Palestinians in the OPT. Those lawyers who are able to access detainees are often subjected to strip searches and humiliated when visiting their clients. Many must wait a couple of hours before being allowed access to their clients. In addition the Israeli Prison Authority often transfers the detainee without informing the lawyer in advance of his/her visit. There are also restrictions imposed on lawyer-client meetings, which often have to be conducted within the view or hearing of prison guards in open areas (3).
- Israel rationalises military orders as necessary for ‘security’. In practice, security is defined so broadly that virtually any restriction of Palestinian freedom can be covered. For example, in 1980, the Military Commander of the West Bank issued a military order that effectively placed all West Bank universities under military control.
- Closing down of the Nafha Society for the Defence of Prisoners and Human Rights. Available online at: http://www.fidh.org/spip.php?article5741
- Addameer Prisoners’ Support and Human Rights Association: (2008) ‘Defending Palestinian Prisoners: A report on the status of defense lawyers in Israeli courts’ (Forthcoming).