Everyone has the right to liberty and security of the 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 procedures as are established by law.
Article 9(1), U.N. International Covenant on Civil and Political Rights and see also Article 11, Draft Palestinian Basic Law
"Political" Prisoners Prior to the Intifada
When the current Intifada began, the PA released most of the "political" detainees it was then holding, despite concerns that some may have been responsible for attacks on Israeli civilians.65 Clearly, as civilians may never be targeted for attack even in situations of armed conflict or occupation, if the PA has evidence that any past or present detainees or others have committed violent offences against Israeli or other civilians, it should bring them to justice for these acts in accordance with international fair trial standards.
Some of the detainees released at the start of the current Intifada, as well as other Palestinian militants or critics, have been briefly redetained and released periodically in the past year, usually following armed Palestinian attacks against Israelis.66 Most recently, in September and October 2001, the PA again began arresting alleged planners or perpetrators of armed attacks against Israelis. These arrests followed tightened pressure from Israel for the PA to clamp down on those responsible for carrying out suicide bomb attacks and other violence against members of the Israeli security forces and Israeli civilians.
Round-Up of Alleged Collaborators
A well-placed official in the PA state security judicial system told Human Rights Watch that there were more than 400 "security" prisoners in the West Bank alone.68 Another official, General Tawfiq Tirawi, head of the GIS for the West Bank, said that there were a maximum of 300 alleged collaborators in detention in the West Bank who had already confessed and that 200 of these were held by the GIS.69 He would not disclose the number of "security" prisoners in the West Bank who had not made confessions.
Far fewer "security" prisoners seem to be held in the Gaza Strip, possibly up to one hundred, though the deputy chief of the Gaza PSS reportedly said in March 2001 that 150 alleged collaborators had been arrested since the beginning of the Intifada.70 The PICCR told Human Rights Watch there were between forty-five and fifty-five such detainees held as of early September in the sections of al-Saraya prison run by different security forces: the PSS holding twenty to thirty, the GIS fifteen, and the MIS about ten, with the PSS holding another fifteen in a detention center in Tal al Hawa.71 In addition, the director-general of the Prison Service, Colonel Hamdi Rifi, told Human Rights Watch that al-Saraya prison in Gaza City housed thirty "security" prisoners, which would include convicted prisoners and those whose interrogation has finished but who have not been tried.
The number of "security" prisoners fluctuates because of periodic round-ups, often in response to a specific killing of a Palestinian militant and resulting public anger, and because some detainees are subsequently released without charge. Following a week of violence and the killing by Israel of senior Hamas activists in the first week of August 2001, security forces reportedly rounded-up sixty alleged collaborators in Palestinian areas.72 A journalist reported visiting the "security" prisoner section of Hebron prison in January 2001, where 200 alleged collaborators had been detained over the previous month.73 Human rights lawyers told Human Rights Watch that sixty alleged collaborators were arrested in one day in Jenin in early June or July, and a further sixty were rounded-up in Ramallah circa July 19, though some of these were subsequently released.
The precise number of "security" detainees is impossible to verify. As a human rights lawyer in Gaza explained to Human Rights Watch:
Nobody knows , not even God, because anyone can arrest, even the political parties sometimes keep people. ... I can't visit them in detention. For me they could be in the Hague.74
The figures reflect deep concern in the Palestinian administration about the reliance of Israeli security forces on Palestinian informants to carry out military or security operations. It is also a way for the PA to appear to be acting decisively in an attempt to assuage popular anger and fear of betrayal.
In the climate of fear and suspicion in the midst of this conflict, Palestinian security forces often appear to be rounding up Palestinians arbitrarily with little evidence to justify arrest and detention, acting on rumors, suspicions, and popular denunciations. This is clear from the number of detainees who are eventually released without charge, the long periods before others are brought to trial, if at all, and the testimonies of detainees who are tortured to elicit evidence, even fabricated, against a suspected informant. Once arrested, alleged collaborators can spend months in detention without judicial supervision or any effective remedy to secure their release and are at risk of abuse by the security forces that hold them.
Khaled al-Qidra, now the state security attorney general, explained to Human Rights Watch that some alleged collaborators are kept in detention, sometimes without charge or trial, because in the community they would be at risk of being killed by unknown attackers. Protecting persons at risk of unlawful attack does not justify arbitrary detention without charge or trial. No one should be arrested and detained unless there is reasonable evidence to suggest they may have committed a criminal offense.
Human Rights Watch has expressed concern about the practice of administrative detention when it has been introduced to circumvent proper legal procedures, including the right to be tried within a reasonable time; to be informed of the specific reasons for the arrest; the right to challenge before a judicial authority the lawfulness of the detention and to be released if the detention is found to be arbitrary or unlawful; and the right to be able to complain to a judicial authority about mistreatment. In light of the performance of the PA since 1994, particularly in the areas of arbitrary arrests, prolonged untried detention, unfair trials and mistreatment of detainees, Human Rights Watch views this development as a further disturbing deterioration in the already weakened Palestinian judicial system.
Abuse of Palestinian Law and Human Rights Standards
The police cannot arrest anyone without giving me a request...and showing they have real evidence and asking me for an order to arrest. If there is evidence I issue the warrant, then they are brought to me. The law is followed. I am serious...This is the freedom of the people. My job is to protect freedoms of the people....There have been no cases of illegal arrest in the last year.
The cases investigated by Human Rights Watch show otherwise.
Informing Detainee of Reasons and Informing Family of Detention
Prompt First Appearance Before Judicial Authority
Authorized Extensions of Detention and Charge or Trial within Reasonable Time or Release
Despite clear evidence to the contrary, the state security attorney general insisted to Human Rights Watch that there are "no more than three or five people" in detention without charge or trial. In practice, the Palestinian security forces routinely ignore the requirement to seek and justify formal, limited extensions of detention, and continue to hold suspects illegally with impunity. In most of those cases investigated, the detainee was, or continues to be, held in detention without charge or trial for periods ranging from two months to well over a year.
The state security attorney general also explained to Human Rights Watch that when deciding which detainees to bring to trial he takes into account the provisions of the Oslo Accords that forbid the trial of those accused of collaboration during the Israeli occupation prior to 1994. These detainees are therefore likely to remain in a limbo, in detention but without charge or trial, possibly for years.
Access to Families, Lawyers, and Doctors
West Bank law gives a suspect the right to contact and retain a lawyer but no clear and express right is found in the law in Gaza.84 International human rights standards are clear that a detainee has the right to communicate and consult with a lawyer,85 must be informed of this right,86 and must have adequate time and facilities to do so without delay and in confidentiality, including to prepare a defense to any criminal charge.87 As mentioned above, lawyers have found it even more difficult during this Intifada to visit detainees, and the few who in the past were able to see detainees under interrogation are now being denied access. Palestinians generally see little point in appointing a lawyer, certainly before a trial is imminent, as the lawyer will be powerless to assist the detainee. When lawyers and families are able to see detainees it is usually within hearing of guards and so difficult and potentially dangerous, given the possibility of reprisals, for the detainee to speak openly about his or her treatment.
Punishment for Illegal Arrest and Detention
Testimonies and Reports
Tareq Muhammad Khader Sumaya from Abu Qash, near Ramallah, has also suffered from such rivalry, or lack of coordination, between agencies. After being arrested by the PSS in December 2000 and released, he was rearrested twenty days later by the MIS in January 2001. As of September 2001, nine months later, no one had been allowed to visit him.91
In many of the cases investigated by Human Rights Watch detainees were commonly held incommunicado for at least two months, and sometimes considerably longer. Families were told no more than that their relative was being detained for "security reasons." Bassam Hassan Hussein al-‛Imla, from Nablus, was arrested in January 2001 and transferred to the MIS in Ramallah, where he remained as of September 2001. His family was allowed to visit him for the first time at the end of March and then again in May. They have only been told that he is being held for "security reasons."92 Qassem Abd Allah Asmar al-‛Imla from Qabalan, near Nablus, was arrested by the MIS on April 27, 2001. His family was not allowed to visit him until June and he was released without charge in July. It is not clear why he was arrested.93
The PA has arrested and detained without trial a number of Palestinian Arab citizens of Israel for alleged collaboration with Israel. The Israeli Ministry of Justice provided Human Rights Watch with the names of thirty-five Israeli Arabs allegedly held by the PA on these grounds. The information showed that eleven are held in Hebron and seven in Ramallah, with the rest detained in Nablus, Qalqilya, Jenin, Yata, and Dura. Five were arrested between April and August 2000, and the remaining thirty were detained since the Intifada began. The information suggests that seventeen have been held without charge or trial for more than six months.
A Palestinian Arab with Israeli citizenship, Nasr Abu Kbash (37), a farmer from Sum'u, near Hebron, was arrested on November 13, 2000 by the GIS and is detained without charge or trial in Thahriya prison near Hebron. He was held incommunicado for the first four months, during which time he was reportedly beaten around the head and face.94 Ghassan Hassan Nimr, a 24-year-old restaurant worker from Beit Safafa, Jerusalem, was arrested by the PSS when he visited Hebron in January or February 2001, and has been held in Thahriya prison without charge or trial since then. His family was able to start weekly visits after the first two months in detention. He has reportedly not been tortured. Palestinian officials reportedly say he has confessed to collaborating with Israel.95
Amnesty International estimated that in 2000, prior to the current Intifada, about 300 "political" and "security" detainees arrested in previous years continued to be arbitrarily held without charge or trial, though at least eighty of these were Islamists released in September/October 2000. 96 More were released in the following months. Faruq Abu Hassan, a postal worker from Gaza, has been held by the MIS in Gaza without charge or trial since his arrest on November 8, 1994, and despite a High Court order for his release on December 9, 2000 (referred to above). He had spent thirteen years in an Israeli prison before his arrest. For the first three months of 1995 he was denied access to the outside world while under interrogation, during which time he was allegedly severely beaten. His wife Zahira has described97 how she paid 8,500 Jordanian dinars (about U.S. $12,000) to a member of the MIS who claimed that with the payment her husband could be released. Instead, she was stopped from seeing her husband for the next eighteen months. The authorities refuse to say why Faruq Abu-Hassan is being held. The PHRMG considers his detention is related to a letter he co-signed in 1981 while in an Israeli prison that was sent to then Egyptian President Anwar Sadat supporting Egypt's peace agreement with Israel. 98
62 For the period up to September 1997, see Human Rights Watch, "Palestine Self-Rule Areas: Human Rights Under the Palestinian Authority," A Human Rights Watch Report, Vol. 9 No. 10 (E) September 1997, pp. 11-14.
65 According to media reports, the first release took place on October 4, 2000, when a group of twelve Hamas detainees were released from Gaza Central Prison. Subsequent releases took place circa October 8 and October 12. See JMCC, "The Seventh Day of the al-Aqsa Intifada," JMCC Daily Press Summary, Vol. 7 No. 2025, October 5, 2000; JMCC, "Cabinet Meeting Yesterday. . ."
66 See, for example, BBC News Online, "Palestinians Confirm Arrest of Hamas Official," Monday, July 31, 2000, http://news.bbc.co.uk/hi/english/world/middle_east/newsid_860000/860008.stm; JMCC, "Arrest of Persons Suspected in the Case of Killing the Two Israelis in Tulkarem," JMCC Daily Press Summary, January 25, 2001, Vol. 8 No. 2118; and JMCC "Hamas ex-Detainees Hand Over Themselves . . . ."
67 In comparison, in 1999, Amnesty International estimated that there were at least 250 "security" prisoners held without charge or trial for more than one year. See Amnesty International, Palestinian Authority: Defying the Rule of Law - Political Detainee Held without Charge or Trial, April 1999, p.7, (AI Index: MDE 21/03/99).
69 Human Rights Watch interview with General Tawfiq Tirawi, Ramallah, September 7, 2001. A Palestinian human rights source estimated that as of early September there were between 323 and 335 alleged collaborators no longer under interrogation (i.e. most but not all of these would likely have "confessed") in various locations in the West Bank, broken down as follows: Jenin, 67, Nablus, about 106 (including 6 at PSS Nablus) Tulkarem, about 7, Hebron, about 65-75 (including 50-60 at GIS Hebron), Dahriya, 20, Jericho, 8-10, and 50 at GIS Bethlehem. A Palestinian human rights lawyer who visits "security" prisoners said there were 20 held in Ramallah central prison as of September 2001.
75 The most important laws for arrest and detention in the Gaza Strip are the British Mandate, the 1924 Criminal Procedure (Arrest and Searches) Ordinance and British Mandate, and the 1940 Magistrates Courts Procedure Rules. In the West Bank, the relevant laws are the 1961 Jordanian Criminal Procedure Code and the 1960 Jordanian Penal Law. For an analysis and translation of relevant laws on arrest and detention, see Simpson, Detainees Denied Justice, especially pp.32-34 and Annexes III and IV.
76 Gaza: (British Mandate) 1924 Criminal Procedure Ordinance, Sections 3 and 4 (when police can arrest without a warrant) and Section 6 (need for arrest warrant) and Section 242, 1940 Magistrates Courts Procedure Rules (only the attorney general may initiate a criminal case if he has `reasonable and probable cause'). West Bank: 1961 Jordanian Criminal Procedure Code, Article 103 (need an order to arrest) and Article 99 (arrest by judicial police if sufficient evidence).
78 Body of Principles, Principle 16(1) "Promptly after arrest and after each transfer ... a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody."
79 British Mandate, 1924 Criminal Procedure (Arrest and Searches) Ordinance, Section 10(1): "A person arrested with or without warrant and detained under the last preceding section [concerning powers of arrest of police officers] shall be brought before a magistrate within forty eight hours of his arrest."
80 1961 Jordanian Criminal Procedure Code, Article 112: (1) "... The accused brought before him [the attorney general] under the terms of a warrant shall be questioned within 24 hours of being held in custody," (2) "At the expiry of the 24-hour-period, the custodial officer shall automatically bring the accused before the attorney general."
81 Gaza: 1924 Criminal Procedure (Arrest and Searches) Ordinance, Sections 10(3) [first extension] and 10(3)(a). Although it is not clear, under Section 10(3)(a) it may be possible to apply for further extensions beyond 30 days. West Bank: Article 114(1), 1961 Jordanian Criminal Procedure Code.
82 Body of Principles, Principle 19, "A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world..."
83 "... communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days," Body of Principles, Principle 15. The Draft Law to Prohibit Torture of those Arrested, Jailed or Imprisoned, which was rejected by the PLC in May 2000 would have given detainees the right to contact their family or lawyer within six hours of the arrest and the right to see family or lawyer within forty-eight hours.
84 Article 63(1), 1961 Jordanian Criminal Procedure Code. While the detainee has a right to confidential contact with his or her lawyer, this is unless the General Prosecutor decides otherwise (Article 66(2)).
85 Body of Principles, Principle 18: "(1) A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel. (2) A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel. (3) The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order."
87 Article 14 (3) (b), International Covenant on Civil and Political Rights provides that in determining a criminal charge, everyone has the right "to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his choosing."
89 1961 Jordanian Criminal Procedure Code, Article 178, "Any official who stops or imprisons a person in circumstances not provided for by law shall be punished by imprisonment for a period from three months to one year;" and see Article 179 re: officials in detention centers.