This report looks at serious human rights violations committed by the Palestinian Authority (PA) against other Palestinians and the failure of the Palestinian justice system to provide safeguards and redress. It concentrates on the year since the renewal of violent clashes between Palestinians and Israeli security forces in September 2000-an uprising known among Palestinians as the al-Aqsa Intifada or Intifada II (the Intifada). The report looks at underlying weaknesses of the Palestinian justice system that were evident long before the Intifada, as well as the deterioration in the application of justice as a result of the challenges posed by of the current conflict and the impact of Israeli policies. It documents serious abuses such as torture of detainees, arbitrary arrest, prolonged arbitrary detention, the imposition of the death penalty and carrying out of executions after grossly unfair trials, the failure to bring to justice those responsible for vigilante killings, and the impunity of security forces and other officials who commit serious abuses.
The victims of these abuses during the past year have mostly been Palestinians detained as alleged collaborators with Israel, hundreds of whom have been arrested since the beginning of the current Intifada. Most are suspected or alleged to have provided information about other Palestinians to Israeli security forces or to have been involved in selling Palestinian lands to Israelis. Previously, before the start of the current Intifada, the victims and the majority of detainees were members of militant groups such as the Islamic Resistance Movement (Hamas) and the Palestinian Islamic Jihad Movement (Islamic Jihad), as well as other Palestinian critics of the PA. However, when the current Intifada began, the PA released most of the detainees it was then holding from these groups, despite concern that some may have been responsible for attacks on Israeli civilians.1 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 during the past year, usually following armed Palestinian attacks against Israelis. Most recently, in September and October 2001, the PA again began arresting alleged planners or perpetrators of armed attacks against Israeli citizens.2 These arrests followed heightened 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 Defense Forces and Israelis.
On October 31, 2001, Ghazi Jabali, director-general of the Palestinian police, issued an order that placed seven alleged members of Islamic Jihad and Hamas in administrative detention, without charge or trial, for periods of six months to one year.3 Human Rights Watch considers this development to represent an alarming weakening of the PA's already fragile judicial system.
Commitments of the Palestinian Authority
Yet, the serious human rights abuses described in this report undermine crucial foundation stones of an effectively functioning state that respects human rights, including the rule of law, the separation of powers, independence of the judiciary, and the legal accountability of officials who violate the law. While the abuses continue, and so long as the authority and independence of the judiciary are not respected, Palestinians will continue to lose confidence in the willingness and ability of the system and their leaders to protect them against the arbitrary exercise of power by Palestinian security forces and officials.
in the Palestinian Justice System
A detainee who is arbitrarily detained can complain to the attorney general and petition the High Court to be released. However, the security forces systematically ignore orders of the High Court to release detainees who are being held arbitrarily. Although it is a criminal offense not to follow such court orders, no member of the security forces or other official has been prosecuted or convicted for such abuses. Despite his obligations under the law, the attorney general rarely intervenes when detainees complain of arbitrary detention or mistreatment and in practice has little authority over the security forces, especially in relation to alleged collaborators and Islamists in detention. The institution of the attorney general has been weakened further by the creation in November 1999 of the post of state security attorney general.
Direct interference by the executive is further undermining the independence of the judiciary. On at least two occasions in 1996 and 1998, judges were removed without good cause. In June 2000, President Arafat established the long-awaited High Judicial Council, which has responsibility for appointing, promoting, disciplining, and training judges. Yet in September 2001 the security forces arrested a judge allegedly for facilitating the sale of land to Israelis, ignoring the authority of the High Judicial Council to sanction the arrest of a judge.
President Arafat has still not ratified several laws passed by the Palestinian Legislative Council (PLC) that are essential for unifying and updating the laws throughout the territory under the administration of the PA and establishing the rights of all persons in the PA areas. These key laws are the Draft Palestinian Basic Law (passed by the PLC in October 1997), the Draft Judicial Authority law (passed in November 1998), the Draft Ordinary Courts Law (passed May 2000), and the Draft Penal Code (passed June 2000).
At least ten different security forces operate in the PA. They tend to perform as autonomous units with ill-defined, overlapping and poorly coordinated functions. With little accountability, they often ignore the judicial system and the laws governing their actions. The three security forces most frequently mentioned in this report are the Military Intelligence Service (MIS or Istikhbarat), the General Intelligence Service (GIS or Mukhabarat), and the Preventive Security Service (PSS or al-Amn al-Wiqa'i).
The Palestinian justice system was weak and politicized after operating from 1967 until 1994 under Israeli military administration, which did not encourage an independent judiciary and neglected its physical infrastructure. Palestinian courts did not handle cases related to security or political matters during the period of Israeli military administration. Thus, the period from the inception of the PA in 1994 represents the first time a local Palestinian legal system has been required to deal with political or security cases since 1948.
The justice system has been further damaged by the PA's failure to give sufficient authority, respect, and financial and other resources to the judiciary. The system is plagued by an insufficient number of judges, the lack of properly qualified and a lack of trained judges, prosecutors, lawyers, and court officials. The inadequate budget provided by the PA for the judiciary has meant poor salaries that encourage corruption, and result in further deterioration of buildings and infrastructure.
Impact of Israeli Responses to the
Over the past year, several police, security, and civil defense installations-including prisons and detention centers-have been damaged by Israeli shelling or air strikes, often carried out in reprisal for attacks on Israelis by armed Palestinians, for which Israel holds the PA responsible.5 While Israel has called on the PA to imprison individuals involved in the planning and carrying out of attacks on Israelis, such reprisal attacks on the installations of the very organs that should be conducting these arrests appear to undermine that outcome. PA officials have complained that such attacks are compromising their ability to maintain law and order and have further cited the threat to the lives of detainees from such attacks as a reason for releasing large numbers of detainees.
Arrest and Detention
These detainees, like many activists detained before them, regularly experience violations of their internationally-recognized human rights. Palestinian security forces sometimes arrest alleged collaborators arbitrarily, without sufficient evidence, acting on rumors and popular denunciations. Detainees are commonly arrested without a warrant and not told the reasons for the arrest; their families are not informed of their whereabouts and while under interrogation the suspects are denied access to lawyers and independent doctors. They are commonly not brought before a judge within twenty-four or forty-eight hours, as required by Palestinian law. In many cases extensions in police custody are not authorized, as required, by the attorney general. Once arrested, they can spend months in detention without charge or trial, and without judicial supervision or an effective remedy to secure their release, at risk of abuse by the security forces that hold them.
On October 31, 2001, the PA entered a new phase by issuing administrative detention orders placing seven alleged members of Islamic Jihad and Hamas in untried detention, without charge, for periods of six months to one year.7
At least five factors encourage the torture of detainees under interrogation. First, detainees are routinely denied access to the outside world and the protection this brings while they are under interrogation. Second, prosecutors in the State Security Courts rely heavily on uncorroborated, signed confessions as the only or primary evidence, so there is intense pressure on the security forces to extract information from suspects. Third, perpetrators enjoy impunity. Torture allegations are usually dealt with by individual security forces as a confidential and internal disciplinary matter, a practice that is inadequate as an effective deterrent. Fourth, the absence of clear instructions by security force commanders and proper training of all security forces personnel has impeded the development of a culture of respect for the human dignity of all detainees. Finally, there exists a general public attitude that alleged collaborators deserve whatever treatment they receive by way of punishment, exacting revenge, and deterring others.
Courts and Grossly Unfair Trials
Since the current Intifada began, sixteen defendants have been tried in the Higher State Security Court or Military Court as informants for Israeli security forces. Fifteen have been convicted. Eleven of the fifteen were sentenced to death and two executions have been carried out.
Although the authorities have rectified some of the abuses of trial procedures prevalent when the court was established, the trials are still inherently and grossly unfair. Many are held in a highly charged atmosphere that compromises the right of defendants to be presumed innocent until proven guilty. Some hearings seem to have been hastily convened in response to Israeli attacks and to assuage public anger. Most trials last only a few hours. Most defendants who deny the charges against them are convicted solely or principally on their uncorroborated, signed confessions, obtained while they were held in incommunicado detention, and which they often retract in court. The court has consistently failed to investigate adequately defendants' allegations that their confessions were extracted under torture. In violation of international standards and usual procedures in Palestinian laws, those convicted by the State Security Court have no right to appeal to a higher court.
Except in rare cases, the accused are defended by court-appointed counsel who are not practicing lawyers, but serving members of the security forces. They usually say little on behalf of their client, fail to present a proper defense and sometimes use language showing they consider their client to be guilty. Little advance notice of a trial is given, usually only a day. Defense lawyers sometimes have a few minutes, or in some cases twenty-four hours, to prepare their defense. Some court-appointed defense lawyers have tried to challenge evidence and present elements of a defense, but they have usually been blocked by court rulings. For example, the court invariably rejects requests for adjournments to prepare a defense.
Vigilante Killings of Alleged Collaborators
With no semblance of due process, completely outside the justice system, some killings appear to have been motivated by personal grievances. Others have resulted in the mistaken killing of the wrong person. In many cases a clandestine group has claimed responsibility and denounces the victim as a collaborator. While President Arafat and other senior PA officials have condemned the killing of alleged collaborators,9 investigations by PA security forces have been perfunctory and not a single perpetrator has been brought to justice.
Security and Human Rights during the Intifada
A government or governing authority has a responsibility to provide basic security and prevent attacks on its citizens. However, the imperative of guaranteeing security must be balanced with respect for the human rights of alleged offenders. Policies undertaken in a time of national crisis must still respect the rule of law, not abrogate it. Many Palestinian human rights organizations and lawyers have strongly argued in support of this view.
The new challenges facing the fledgling Palestinian justice system as a result of the current Intifada should not be met with further arbitrary arrests, torture, and unfair trials. Such a response undermines the very notion of a justice system and risks leading to anarchy, loss of confidence in the institutions of governance, and the deeper alienation of Palestinians from their authorities and one another. The weaknesses of the justice system should be overcome by resorting to strict respect for the rule of law and for international human rights standards. These international human rights principles highlight serious deficiencies in the way the PA has responded to the perceived threat of collaborators.
First, certain human rights can never be suspended in any circumstances. Torture and extrajudicial, arbitrary, or summary killings are prohibited no matter what the alleged offense. Yet, this report confirms that alleged Palestinian collaborators have been tortured and some have died in custody.
Second, it is a basic principle of criminal law that, for an individual to be detained, she or he must be suspected of or charged with having committed a recognizable criminal offense. PA officials told Human Rights Watch they only arrest, detain, and prosecute collaborators who fall into two categories. The first is made up of those who have had a relationship with Israeli security after 1994, especially informants who give information that assists Israel in its policy of "liquidations."10 From the perspective of the Palestinian Authority, giving such information to Israel amounts to a recognizable criminal offense akin to "treason" or "espionage," and is punishable by death or a lengthy term of imprisonment.
The PA also says it arrests Palestinians who sell land to Israelis. It is not uncommon for governments to prohibit or penalize the alienation of land to foreigners, including nationals of neighboring countries. Violations of such prohibitions are usually dealt with by blocking the sale of land in the courts, and/or by imposing fines or terms of imprisonment. In the context of the Palestinian-Israeli conflict, the PA has declared all such alienation of land as a threat to national security carrying a lengthy term of imprisonment, or even the death penalty.
In both of the above examples the PA does not distinguish between different levels of culpability, nor does it appear to take account of the intentionality element of the crime. For example, mere contact with Israelis, even Israeli security officials, should not by itself constitute a treasonable offense unless the accused carried out a specific act. An unwitting participant in Israeli intelligence-gathering activity should not be charged with, nor found guilty of, the severe crime of treason.
Finally, all persons are entitled to equal rights during arrest and detention. An alleged collaborator, like any suspect, must still be treated equally in accordance with Palestinian law and international standards for arrest, detention and trial. No one should be arrested arbitrarily, without sufficient evidence or in violation of legal procedures.
Possible during the Intifada?
· Investigate all allegations of torture and ill-treatment thoroughly and impartially, release the results, and prosecute those responsible in public trials that meet international standards for fairness, with punishments that reflect the seriousness of the offense. Prohibit security forces from dealing with allegations of torture purely as an internal and confidential disciplinary matter.
· Carry out autopsies after every death in custody and make public the results.
· Carry out independent investigations of all deaths in custody, publicly release the findings, and, as appropriate, discipline or prosecute any member of the security forces or prison service or other officials found to be responsible.
· Allow families, lawyers of choice, and doctors access to all detainees promptly and regularly after arrest, especially during the period of interrogation. Always inform a detainee's family immediately of an arrest and the place of detention;
· Allow lawyers from the Palestinian Independent Commission on Citizens' Rights, private lawyers, and lawyers from human rights organizations prompt and regular access to detainees under interrogation;
· Ensure that the International Committee of the Red Cross (ICRC) has access to all alleged collaborators and people detained for political reasons held by the Military Intelligence Service (MIS), in compliance with the PA's agreement with the ICRC, and ensure that all PA security forces grant full, regular, and confidential access;
· Bring every detainee before a judicial authority within the period required by Palestinian law (twenty-four hours in the West Bank and forty-eight hours in Gaza) and ensure that the attorney general authorizes any extensions of detention up to the maximum period of thirty days allowed by law before the detainee must be charged or released.
· Stop the use of administrative detention unless those detained can be guaranteed substantive, prompt and periodic review by an independent judicial authority; are provided with specific, personalized and detailed reasons for their detention; are allowed to challenge the lawfulness of their detention in a fair hearing before a judicial body; are permitted immediate access to their family, legal counsel, and a medical officer; and can complain to a judicial authority about mistreatment;
· Maintain an official, up to date, centralized register of all detainees in every place of detention. Make the contents of this register available to the family members and legal counsel of detainees, as well as to judicial or other competent national authority entitled to seek to trace the whereabouts of a detained person.
· Instruct all security forces that all detainees, including alleged collaborators, as well as persons critical of the Oslo Accords or the PA, are to be treated strictly in accordance with the law and international human rights standards.
· Annul previous trials before the
State Security Court and give those already convicted new and fair trials
or release them;
· End the use of the death penalty, which is a violation of the right to life and is inherently cruel. President Arafat should not ratify any death sentences. All laws with provision for the application of the death penalty should be reviewed and the relevant provisions suspended or deleted.
· Carry out serious and professional police investigations into vigilante attacks and bring the perpetrators to justice. Carry out internal investigations to ensure no one in the PA or associated organizations is carrying out or encouraging or tolerating vigilante attacks.
· Instruct the security forces to abide by orders of the High Court to release detainees arbitrarily held as soon as such orders are issued and prosecute those who ignore such orders, as provided in Palestinian criminal law;
· Bring the function of the state security attorney general under that of the civil attorney general for the investigation and prosecution of all crimes;
· Ensure that the attorney general fulfils his obligations under Palestinian law by actively seeking to release arbitrarily held detainees, acting on complaints from detainees or their representatives, and regularly inspecting places of detention. President Arafat should instruct the security forces to respect the authority and responsibilities of the attorney general;
· Unify the command of all Palestinian security forces to ensure that they are properly coordinated, with clear and separate mandates, and are accountable for implementing Palestinian law and respecting international human rights standards.
· Ensure that any restrictions on freedom of movement are discriminate and proportionate in impact and duration, and implemented only when and where necessary to prevent individual acts of violence. Provide travel permits valid for use in times of closure to judges and other persons essential to the functioning of the Palestinian justice system. Instruct Israeli security personnel to honor such permits at checkpoints and facilitate passage;
· Ensure, and publicly announce, that places employed by the PA solely for the detention of suspects and convicted prisoners are not the object of military attack;
· Review carefully the targeting of police posts and other installations that are part of the Palestinian justice system infrastructure. Such installations become legitimate targets only if their location or use make an effective contribution to military action. Refrain from targeting such installations when attacks are essentially in reprisal for Palestinian attacks on Israeli targets;
Urge the PA publicly and at the highest levels to:
· Cease the practice of incommunicado detention and grant all detainees under interrogation prompt and regular access to their family, lawyers of their choice, and medical attention;
· Abolish State Security Courts or ensure that they with international fair trial standards, including the right to be tried by an independent and impartial tribunal, the right to be presumed innocent until proven guilty, the right to prepare a competent defense, and the right to appeal to a higher tribunal;
· Take immediate and concrete steps to counter vigilante attacks and to bring the perpetrators of such attacks to justice;
· Ratify the Draft Palestinian Basic Law, the Judicial Authority Law, the Draft Ordinary Courts Law, and the Draft Penal Code.
· Make available to the PA resources and training programs for judges, prison administrators, prosecutors, and other law enforcement officials in order to improve the administration of justice in areas under PA jurisdiction;
· Insist publicly as well as through diplomatic channels that respect for fundamental human rights is essential to any durable peace agreement with Israel, that the PA must discharge its security responsibilities in a manner that does not violate fundamental human rights, and that the basic rights of Palestinians who oppose PA negotiations with Israel or other aspects of PA policy are not suspended or rendered inoperative on account of their political views;
· Urge the PA leadership to respect the independence of the judiciary and end executive interference in judicial matters;
· Employ financial assistance programs to encourage proper scrutiny by the PA of the actions of security forces;
· Encourage the PA to curtail and bring an end to the use of the death penalty;
1 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 Jeruslaem Media
and Communications Center (JMCC), "The Seventh Day of the al-Aqsa Intifada,"
JMCC daily press summary, Vol. 7 Number 2025, October 5, 2000; JMCC, "Cabinet
Meeting Yesterday: Hamas and Islamic Jihad Representatives Attended," JMCC
Daily Press Summary, Vol. 7 No. 2028, October 7, 2000.
2 Amnesty International estimates that at least sixty people were arrested during this period. See Amnesty International, "Palestinian Authority: Justice Must Not Be Discarded," news release, November 8, 2001 (MDE 21/023/2001 197/01).
5 Since the beginning of the Intifada, police stations and security or civil defense installations have been damaged by Israeli shelling or airstrikes in and around the main Palestinian towns of Ramallah, Nablus, Jenin, Tulkarem, Qalqilya, Jericho, Khan Yunis, Rafah, and Gaza City. Many of these installations contain holding or detention facilities. Al-Saraya prison in Gaza City and Junayd prison in Nablus were also damaged in such attacks.
8 Twenty-three deaths in custody took place from 1994 to 2000. See Human Rights Watch, World Report 2001 (New York: Human Rights Watch, 2001), p. 367. Deaths in custody during 2001 are listed in "Torture, Ill-Treatment and Deaths in Custody" below.
11 Recent Human Rights Watch publications on Israel, the Occupied Palestinian Territories and the Palestinian Authority include: Human Rights Watch, Israel, the Occupied West Bank, Gaza Strip, and Palestinian Authority Territories: Center of the Storm: A Case Study of Human Rights Abuses in Hebron District (New York: Human Rights Watch, 2001); Human Rights Watch and Amnesty International, "Human Rights Monitors Needed in Israeli-Palestinian Conflict," open letter to leaders of US, EU, Israel, and PA, and UN Secretary-General Kofi Annan, July 6, 2001; Human Rights Watch , "Israel/Palestinian Authority: Call on Islamic Jihad to Stop Civilian Killings," press release, November 8, 2001. A full list of Human Rights Watch publications and press releases on Israel, the Occupied West Bank and Gaza Strip, and the Palestinian Authority Territories can be found at http://www.hrw.org/mideast/is-ot-pa.php.