Many of the human rights abuses described in this report derive from fundamental weaknesses in the Palestinian justice system that emerged within six months of the PA being established in 1994. This section summarizes these principal failings and how they have been further aggravated by the impact of the current Intifada. A thread running through these factors is the way the PA executive-the president, ministers, and the police and security forces-have systematically disempowered and undermined the authority and independence of the judiciary and legal remedies. The separation of powers is not respected. PA officials have not shown the political will to give sufficient authority, respect, and financial and other resources to the judiciary and the legislature to build the foundations of the rule of law. By weakening the ability of the judiciary to hold the executive accountable, the executive has contributed to serious human rights abuses, including torture, unlawful killings, and prolonged arbitrary detention. It has created a situation in which ordinary Palestinians have neither the means to redress injustice, nor any protection against their abusers. The pressures of the Intifada have magnified these problems.
The Legal System
The Ordinary Courts
The State Security and Military Courts
The Attorney General
The Administration of Justice
The Places of Detention
Human Rights Commitments of the PA
Israel and the Palestinian Authority shall exercise its powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms and principles of human rights and the rule of law.
In October 1993, Chairman (and subsequently President) Yasser Arafat pledged to an Amnesty International delegation in Tunis that the PLO was committed to respecting all internationally recognized human rights standards and to incorporating them fully into Palestinian legislation.18 In a radio broadcast of December 31, 1993, Chairman Arafat was reported as saying:
We want a Palestine that is being revised anew to be . . . democratic, an oasis in which our people will enjoy freedom, democracy, political pluralism, security and safety, the independence of the judiciary, the preservation of public freedoms, stability, prosperity, human rights and equality between men and women.19
President Arafat gave a similar pledge to the secretary general of Amnesty International in Gaza on February 7, 1996.
Although the Draft Palestinian Basic Law has not yet been ratified by President Arafat, it emerged from an exhaustive process of public and legislative debate and refinement. It echoes many of the international human rights guarantees referred to in this report.
The PA exercises "state like" functions in looking after the welfare and security of its inhabitants. It also aspires to be the government of a sovereign state, and as such should also aspire to respect fundamental international human rights standards.
For all these reasons Human Rights Watch considers that the PA should be held accountable under accepted international human rights standards in the treatment of persons living under its jurisdiction.20
(1) ... It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary ... (4) There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.
U.N. Basic Principles on the Independence of the Judiciary, Articles 1 and 4.21
Everyone has a right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted him by the constitution or by law.
Palestinian political leaders and security forces regularly disregard or overrule the law and the authority of the courts and attorney general. A detainee who is being arbitrarily detained can file a writ of habeas corpus with the High Court, asking that the security forces justify his or her detention or release the detainee. Yet the security forces have systematically ignored High Court orders on habeas corpus writs to release detainees. A report by the nongovernmental Palestinian Human Rights Monitoring Group (PHRMG) in June 2000 found that out of eighty-three High Court orders for the release of detainees since January 1997, only three had been implemented.22 In October 2000, the PICCR listed thirty-nine "political" prisoners who were still in detention despite High Court orders to release them. The vast majority dated back more than one year.23
Since the outbreak of the present Intifada, few lawyers have sought to file habeas corpus applications. In one of its few recent decisions, on December 9, 2000, the High Court ordered the director of prisons and the Military Intelligence Service in Gaza City to release Faruq Abu Hassan (see below), who had been arbitrarily detained since November 8, 1994 without charge or trial. Nearly one year later neither the director of prisons in Gaza City nor the MIS has complied with the order. Neither of the two attorneys general (see below) intervened and President Arafat has not ordered the MIS to comply.
In both Gaza and the West Bank it is a criminal offense to ignore a court order, punishable by up to two years of imprisonment,24 yet no member of the security forces or prison administration has been prosecuted or convicted for ignoring High Court orders. As the PICCR has commented, "Court decisions are futile if there is no way to implement them."25
The attorney general (al-na'ib al-‛amm) investigates crimes, charges suspects and prosecutes cases in court. The attorney general is also responsible for approving extensions of periods of police detention, supervising prisons and detention centers, and ensuring that no detainee is held illegally. Under applicable criminal procedure law, he is obliged to investigate complaints that a person is held illegally and to release anyone detained illegally. The first PA attorney general, Khaled al-Qidra, was dismissed in 1996 for alleged corruption after he had gained notoriety for ignoring torture and arbitrary arrests. After a year-and-a-half gap, Fayez Abu Rahma was appointed as the PA's second attorney general, but he resigned in April 1998, criticizing the minister of justice and security forces for interfering in his work.26 The post remained vacant again until the current attorney general, Zuheir Sourani, was appointed in June 1999.
The institution of the attorney general was further weakened when President Arafat created a state security attorney general on November 1, 1999. Arafat appointed to this position Khaled al-Qidra, the previously dismissed first attorney general. He now supervises the detention of most "security" and "political" prisoners-i.e. those who are most at risk of abusive procedures and treatment.
In cases of unlawful detention it is normal for lawyers to petition one of the attorneys general first before applying to the High Court, but this seems to have become an ineffective formality. The civil attorney general rarely intervenes and in practice has little authority over the security forces, especially in relation to "political" and "security" prisoners. The security forces often do not inform either attorney general of detentions, especially the civil attorney general, nor apply to them for extensions of detention although they are required to do so by law (see below).
If neither the High Court nor the attorneys general can provide effective remedies for abuses by the security forces, there are few other places to turn when time is often of the essence. It is not surprising that people have lost confidence in the judicial system and resort to other established authorities to resolve disputes or to intervene in abuses by the security forces, such as the hamula (traditional clan groupings), governors, members of the PLC, relatives, or other possible sympathetic people within the security forces or any respected person in society who may have influence.
Even before the current Intifada, Palestinian governors and security force commanders at times displaced the courts by directly interfering in cases. The current Intifada has exacerbated this problem. The PICCR has commented:
The paralysis in the work of the courts [because of the Intifada] left governate officials to deal with and render judgment on human rights and criminal cases. This situation increased citizens' aversion to the Judiciary as an appropriate party for settling disputes, and further diminished the civil Judiciary's authority.27
Instances of direct interference by the highest executive authorities expose the subordinate role of the judiciary. On at least two occasions judges have been removed from office without cause. Qusai Abdallah, the chief justice of the High Court in Gaza, was forced to "retire" by PA officials in January 1998 after he publicly criticized executive interference in the appointment and promotion of judges.28 Amin Abd al-Salam was forced to step down as chief judge of the High Court in the West Bank shortly after he ordered the release of a group of Bir Zeit University students who had been arbitrarily detained in 1996.29 The civil court system is also being disempowered by the gradual expansion of the jurisdiction of the extraordinary State Security Court, which is clearly under the control of the executive (see below).
Even recent positive developments in building an independent justice system have been partially undermined by executive interference. Implementing a long-standing recommendation of jurists, President Arafat established a High Judicial Council on June 1, 2000. The council brings together nine judges from different courts, the civil attorney general, and a Ministry of Justice representative. It has responsibility for appointing, promoting, disciplining, and training judges.
The council's work has been marred by legal confusion, it has not yet been given an independent budget as required, and its authority has been undermined by the executive. The council is meant to apply the Draft Judicial Authority Law but this law, having been passed by the Palestinian Legislative Assembly, has not yet been approved by the president. Most important, with the council in existence a judge should not be arrested for a crime without its permission.30 Yet on September 6, 2001, the Preventive Security Service in Ramallah arrested West Bank District Court Judge Ghazi Atara for allegedly selling or facilitating the sale of Palestinian land to Israelis. The PSS reportedly sought the permission of the minister of justice, but ignored the council, although it has the authority to decide whether a judge should be arrested.
Victims can also turn to defense lawyers, nongovernmental human rights organizations and official institutions to petition the attorney general and the High Court and to advocate on their behalf in public and private. There are many organizations ready to act on behalf of "political" prisoners. It is more difficult, however, to find advocates prepared to act for the more unpopular alleged collaborators (see below).
In the past the PLC played an important role in monitoring respect for rights, strongly criticizing arbitrary detention and torture, and investigating some high profile cases.31 The executive often ignored the PLC's criticisms, but in today's heightened conflict it has further marginalized the PLC. It has also been difficult physically for the PLC as a whole or in committee to meet due to Israeli restrictions on Palestinians' freedom of movement (see below).
The Palestinian Bar Association ("Bar Association") should be a strong advocate against egregious abuses. In April 1999, it organized a one-day strike of lawyers to protest executive interference in the work of lawyers and judges and the lack of resources for the justice system. However, generally the Bar Association lacks legitimacy in the eyes of many lawyers and human rights organizations,32 and is seen as too close to the executive and ineffective in the face of the executive's attack on the judiciary. 33 This view was reinforced in May 2000 when the Bar Association in effect struck off the list of practicing lawyers those working for human rights organizations.34 Commenting on the Bar Association's record on challenging illegal detentions, one human rights lawyer in Gaza said, "They make only formal interventions and then they sleep."
Failure to Ratify the Basic Law and Judiciary Laws
The PA inherited different legal systems in the West Bank and Gaza, each with its own multiple layers of accumulated laws. French-influenced Jordanian criminal law and procedure largely operate in the West Bank. A combination of Egyptian and British Mandate law, reflecting the Anglo-Saxon system, operates in the Gaza Strip. There is an urgent need to remove this confusion by unifying and updating the laws throughout the Palestinian areas. A prison law (the Reform and Rehabilitation Centers Law, No.6 of 1998) was passed and ratified in May 1998. The Draft Criminal Procedure Law is still under discussion by the Legal Committee of the PLC.
President Arafat has also failed to ratify three fundamental laws that would strengthen the independence and authority of the judiciary: the Draft Judicial Authority Law, passed by the PLC on November 25, 1998,35 the Draft Ordinary Courts Law, passed by the PLC on May 17, 2000, and the Draft Penal Code, passed by the PLC on June 28, 2000.
The persistence of the Intifada presents no obstacle to such ratification. President Arafat could immediately ratify these laws and demonstrate a significant commitment to building an independent and effective judiciary.
Proliferation of Unaccountable Security Forces
Lack of Resources, Infrastructure, and Trained Personnel
Judges do not have the necessary knowledge to exercise their functions. For thirty years [during the Israeli occupation administration] they were told how to fill in forms and not argue matters of substance. This has killed us lawyers. We need training of both judges and lawyers. I desperately need training.37
In 1999, the U.N. Office of the Special Coordinator in the Occupied Territories carried out a detailed study of the state of the Palestinian judicial system and the needs for future assistance.38 This study confirmed that although more than U.S. $100 million had been committed to rule of law projects by international donors since the establishment of the PA, there remained serious gaps and weaknesses, especially in relation to the judiciary, the prosecutorial system, and penal institutions. The judiciary needs new and rehabilitated court buildings, a national judicial training institute, and resources to develop the knowledge and capacity of technical court staff such as clerks and researchers, process servers, and court managers. The prosecutorial system needs more prosecutors, basic professional training on the role of a prosecutor, and basic office facilities and equipment. Although there have been some positive developments in recent years, such as the growth of the Institute of Law at Bir Zeit University, the conclusions of 1999 apply equally today.
19 Quoted in Irwin Cotler, "Palestinian Undertakings to Respect Human Rights - Basic Sources," in the Palestinian Human Rights Monitoring Group (PHRMG), The Palestinian Human Rights Monitor, No. 3, 1997, http://www.phrmg.org/English/publications/1997/issue3/ph03102.htm.
21 See also Article 37, Draft Palestinian Basic Law, which provides that "...[I]ndependence of the judiciary, its immunity, respect for and execution of its decisions are basic guarantees for the protection of rights and freedoms and the establishment of the rule of law."
24 Gaza: "Every person who disobeys any order...issued or given by any court...is liable...to imprisonment for two years" ([British Mandate] Criminal Code Ordinance, No.74 of 1936, section 143). West Bank: "Any employee who directly or indirectly uses the power of his position to prevent or delay the implementation of judicial judgments...[or]...any judicial order ... shall be punished with imprisonment for a period of one month to two years." (1960 Jordanian Penal law, Article 182 ). Translations from Gerald Simpson, Detainees Denied Justice (The Hague: Kluwer Law International and PHRMG, 2001).
26 See Human Rights Watch, "Palestinian Authority," in Human Rights Watch, World Report, 1999 (New York: Human Rights Watch, 1999). Soon after becoming attorney general Fayez Abu Rahma released ten detainees for lack of evidence on August 15, 1997, but they were promptly rearrested by the Preventive Security Service.
28 Reportedly as the result of an interview Abdallah gave to al-Risalah magazine discussing the problems of the Palestinian judicial system. He also called for a disciplinary court to be responsible for deciding whether to dismiss a judge. See LAW, Executive Interference in the Judiciary (Jerusalem: Independent Judiciary Unit, April 1999), pp. 32-33; PICCR, "Dismissal of Palestinian Chief Justice," press release, January 25, 1998.
30 The (unratified) Draft Judicial Authority Law (see below), which the High Judicial Council is meant to implement, provides in Art. 56 (1): "With the exception of cases in which he has been caught in the act of committing a crime, a judge shall not be arrested or detained unless special permission has been given by the High Judicial Council." If caught in the act of committing a crime, sub-article (2) stipulates that the High Judicial Council must decide whether to release the judge or continue the detention. For the English translation of this law, see Simpson, Detainees Denied Justice, Annex XII.
32 This is mainly because the elections for the Bar Association's council, which should have taken place within six months of President Arafat's 1999 ratification of the law establishing it, were never held.
33 For example, see The Center for the Independence of Judges and Lawyers (CIJL) of the International Commission of Jurists, Human Rights Watch, the Lawyer's Committee for Human Rights, the International Federation for Human Rights (FIDH), the Observatory for the Protection of Human Rights Defenders (FIDH/OMCT), and the International Bar Association, `Attack on Palestinian Human Rights Lawyers Condemned,' joint press release, May 15, 2000.
35 It reaffirms the independence of the judiciary; establishes the different courts and the attorney general; prescribes the qualifications, duties, and expected ethical conduct of judges; and establishes the High Judicial Council and how judges can be disciplined, removed, or arrested.
38 U.N. Office of the Special Coordinator in the Occupied Territories (UNSCO), Rule of Law Development in the West Bank and Gaza Strip-Survey and State of the Development Effort, May 1999, available at UNSCO page on the United Nations website: http://www.un.org.