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VI. Legal Standards

International Law

All of the abuses documented in this report – such as arbitrary arrests, torture, unlawful detentions and denial of access to a lawyer – are strictly forbidden in a wide body of international treaties, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

The two most common abuses documented in this report are two of the most strictly forbidden under international law. Arbitrary detention is forbidden by Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which states “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Article 9 also states that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful” and that “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

The prohibition of torture is one of the most fundamental in international human rights law. As set out in the Convention Against Torture, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person… by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The UN’s Committee Against Torture has made it clear that “those exercising superior authority -including public officials - cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.”²⁰⁸ No exceptional circumstances whatsoever may be invoked as a justification for torture.

States are required under the Torture Convention to ensure that torture does not take place. The Committee has made it clear that states are responsible for areas they control “de facto” as well as “de jure” This includes having effective systems in place for addressing victims’ complaints, and prosecuting those who torture, those who order them to, and those in positions of authority who fail to prevent or punish torture. Other states where someone accused of torture is present are required to either extradite that person to face trial, or prosecute them themselves.

The Palestinian Authority is not a sovereign state that can sign and ratify international human rights treaties, but it has repeatedly committed itself to respect international human rights law. According to article 10 of the Basic Law, the Palestinian National Authority “shall work without delay to become a party to regional and international declarations and covenants that protect human rights.”

The PA has explicit legal obligations from the Oslo Accords, an umbrella term for the series of agreements negotiated between Israel and the Palestine Liberation Organization from 1993 to 1996.²⁰⁹ Annex I of the Protocol Concerning Redeployment of the Interim Agreement of September 28, 1995, states that the Palestinian police will exercise powers and responsibilities to implement the memorandum “with due regard to internationally accepted norms of human rights and the rule of law.”²¹⁰ In addition, article XIV of the 1994 agreement on the Gaza Strip and the Jericho Area provides for both Palestine and Israel to respect human rights.

The PA has also committed itself to respect international human rights norms in its membership in the Euro Mediterranean Partnership, known as the Barcelona Process, which is a framework of political, economic and social relations between the Member States of the European Union and states of the Southern Mediterranean. According to the Barcelona Declaration of November 1995, on which the process is based, members undertook to act in accordance with the United Nations Charter and the Universal Declaration of Human Rights, and to “respect human rights and fundamental freedoms.”²¹¹

Both the Ramallah and Gaza authorities consider themselves to be the lawful government of the Palestinian Authority and therefore should be bound by the PA’s agreements. In any event both de facto govern specific territories at this time and therefore should govern in accordance with human rights.²¹²

In the media and in meetings with international human rights groups, PA officials have also repeatedly stated their commitment to abide by internationally recognized human rights standards. A recent report issued by the Ministry of Interior on arrests during the state of emergency refers to international human rights principles and covenants.²¹³

As only a de facto governing authority, a political party and an armed group, Hamas cannot sign international human rights treaties, but it has publicly committed itself on numerous occasions to respect international standards. At a speech in Gaza on June 21, 2006, Ismail Haniya said Hamas was determined “to promote the rule of law, the respect for the judiciary, the separation of powers, the respect for human rights, the equality among citizens; to fight all forms of discrimination; to protect public liberties, including the freedom of the press and opinion.”²¹⁴ In the program of the National Unity Government, presented on March 17, 2007, Hamas stated its “respect for international law and international humanitarian law insofar as they conform with our character, customs and original traditions.”²¹⁵

Palestinian Law

The human rights abuses documented in this report also amount to violations of Palestinian law. First and foremost, the Palestinian Basic Law, referred to as the Palestinian constitution, enshrines most fundamental rights.²¹⁶ According to article 9, all Palestinians are equal before the law, without discrimination because of race, sex, color, religion, political views, or disability.  Article 10 states that “basic human rights and freedoms shall be binding and respected.”

Article 11 deals with arrests and detentions, making it unlawful to “arrest, search, imprison, restrict the freedom, or prevent the movement of, any person, except by judicial order in accordance with the provisions of law.” In addition, the article states, the law shall specify the period of pre-arrest detention. Imprisonment or detention is also only allowed in official facilities that are subject to the laws related to the organization of prisons.

According to article 12, the arresting authorities must inform every arrested person of the reasons for his or her arrest. Detainees shall be promptly informed, in a language he or she understands, of the nature of the charges, and they shall have the right to contact a lawyer. Trials must be held “without delay.”

Torture is strictly forbidden under article 13. All persons deprived of their freedom shall “receive proper treatment.”  In addition, all statements or confessions obtained through duress or torture “shall be considered null and void.”

Article 14 guarantees that detainees are innocent until proven guilty in a court of law and guarantees the right to a proper defense. Any person accused in a criminal case has the right to legal counsel.

Article 17 addresses the inviolability of private homes. Private residences cannot be subject to surveillance, entrance or search without a valid judicial order, and in accordance with the provisions of law.

Freedom of expression is enshrined in article 19, which states that “every person shall have the right to freedom of thought, conscience and expression, and shall have the right to publish his opinion orally, in writing, or in any form of art, or through any other form of expression, provided that it does not contradict with the provisions of law.” Article 27 says that the “establishment of newspapers and all media means is a right for all,” as is the “freedom of audio, visual, and written media, as well as freedom to print, publish, distribute, transmit, together with the freedom of individuals working in this field.” According to this article, media censorship is forbidden and “no warning, suspension, confiscation, cancellation, or restrictions shall be imposed on media except by law, and in accordance with a judicial order.”

Freedom of association is enshrined in article 26, which states that Palestinians have the right “to participate in the political life individually and in groups.” In particular, in accordance with the law they, can establish and join political parties, establish unions, guilds, associations, societies, clubs, and public institutions, conduct special meetings without the presence of police members and conduct public meetings, processions, and assemblies.

Articles 88 and 89 guarantee the independence of the judiciary. Judges are independent and “no other authority may interfere in the judiciary or in the justice affairs.”

The security forces and police are addressed in article 75, which says their function is “to defend the country, serve people, protect the community and maintain public order, security and morals.” According to the law, security forces must perform their duties “within the limits prescribed by law with complete respect for rights and freedom.”

The Palestinian Penal Procedures Law elaborates on how the security forces must conduct arrests and treat arrested person. Article 29 states that “No person may be arrested or imprisoned except by order of the competent authority as designated by law.” Detained and arrested persons “must be treated in a manner that will preserve his dignity and may not be physically or morally harmed.”

Article 68 of the Penal Procedures Law states that the authorities can only detain and imprison individuals “in a correctional and rehabilitation centre and in the places of detention designated by law.”

According to the Penal Procedures Law, anyone detained must have their case reviewed by a prosecutor within 24 hours (article 34). A prosecutor can extend the period of detention for another 48 hours. After 72 hours, the case must be reviewed by a judge (article 51), who can extend the detention by another 15 days (articles 62 and 63). A judge can extend the detention for another two 15-day periods for 15 days for a maximum of 45 days. During this time, detainees must have prompt and unhindered access to legal counsel (article 46).

Some of the abuses documented in this report occurred when a state of emergency was in effect (June 14 to July 14, 2007). The Palestinian Basic Law, article 102, allows some restrictions of fundamental rights during this time, but only “to the level that is necessary to achieve the objective stated in the decree that announces the state of emergency.” The presidential decree declaring a state of emergency did not state an objective.²¹⁷ Article 103 states that, during a state of emergency, any arrest or detention must be reviewed by either the attorney general or the concerned court within 15 days and the detained individual must have the right to appoint a lawyer of his choice.

Some legislation regulating the security forces also reference international law. The presidential decree regulating Preventive Security, issued by President Abbas on November 20, 2007, states that “Preventive Security has to abide by the rights, freedoms and guarantees as stipulated in the Palestinian laws and charters and international treaties.”²¹⁸ The PLC has not approved the decree but, according to article 60 of the Basic Law, presidential decrees have the power of law until the PLC convenes and rejects them.

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