Palestinian Authority Defying the Rule of Law: Political Detainees

(April 1999)

Hundreds of political detainees are held in Palestinian prisons without charge or trial, some for more than four years, according to this new report by Amnesty International. "These people are being held outside the framework of local Palestinian law and in violation of international human rights standards, despite President Arafat's promise to Amnesty International delegates that the Palestine Liberation Organization would incorporate all internationally recognized human rights standards into Palestinian legislation," Amnesty International says. The complete report follows:

TABLE OF CONTENTS

Faruq ABU HASAN
Usama and Karima HAMAD
Wa'el FARRAJ
'Abd al-Rahman RADDAD
Jamal MANSUR
Jamal al-TAWIL

Recommendations To the Palestinian Authority
Recommendations To Israel
Recommendations To other members of the international community

PALESTINIAN AUTHORITY

Defying the Rule of Law: Political detainees held without charge or trial

Hundreds of political detainees are currently held in Palestinian prisons and detention centres without charge or trial. Most of these prisoners have now been held for over a year, some for more than four years, outside the framework of local Palestinian law and in violation of international human rights standards.

The Palestinian Authority has undermined the rule of law by defying Palestinian High Court judgments requiring the release of individual prisoners. It has also ignored calls by the Palestinian Legislative Council (PLC) and local human rights organizations and individual Palestinians appealing for the release of prisoners who have been held without due process. In January 1999 the PLC passed a resolution recommending that the Palestinian Authority cancel political detention. In the same month hundreds of Palestinians protested on the streets of various West Bank towns in support of a hunger strike by political prisoners, held for years without charge or trial, in Jneid Prison and Jericho Military Prison. Around 40 individuals are said to have been released; hundreds remain detained.

In all parts of the world the judiciary should act as a vital safeguard of the rights of the individual; in the Palestinian Authority the sidelining of the normal system of justice has dangerously injured individual freedoms.

The political detainees held by the Palestinian Authority fall into two distinct categories: those whom the Palestinian Authority calls “security prisoners,” who are believed to be held on suspicion of collaborating with the Israeli authorities or involvement in selling land to Jews and those whom the Palestinian Authority calls “political prisoners,” who are held for suspected membership of Islamist or leftist groups opposed to the peace process with Israel.¹ “Political prisoners” who suffer prolonged detention without trial are almost invariably those suspected of support for the Islamist groups, Hamas and Islamic Jihad, and their detention is closely linked to pressure from the international community, especially Israel and the United States of America (US), to arrest individuals involved in “terrorism.” Amnesty International recognizes the pressure in this respect placed on the Palestinian Authority by other governments. However the primary responsibility to maintain the rule of law and human rights in the areas under its jurisdiction must fall on the Palestinian Authority and the Authority has an obligation to resist external pressure to violate human rights. Other governments concerned in the peace process in the region have a responsibility not to endorse or encourage violations of human rights and to ensure that human rights do not suffer in any search for peace or security.

This report analyses the practice of prolonged detention without charge or trial in areas under the Palestinian Authority's jurisdiction and presents a number of case histories of political detainees. It also contains recommendations to the Palestinian Authority, Israel and the rest of the international community with the aim of ensuring that the right to liberty and security of person and the right to a fair trial are respected by the Palestinian Authority in the future.

Other serious concerns of Amnesty International with regard to the Palestinian Authority, including the use of the death penalty, unfair trials before the State Security Court and military courts, and torture and ill-treatment are not discussed in this report.²

THE RIGHTS OF DETAINEES

Since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948 a framework of minimum standards to protect the rights of all those placed under arrest has been drawn up by the United Nations and endorsed by the international community. Although the Palestinian Authority has not yet the right to ratify and become a state party to international human rights treaties, President Arafat stated in October 1993 to Amnesty International delegates that the Palestine Liberation Organization was committed to respecting all internationally recognized human rights standards and to incorporating them fully into Palestinian legislation. In 1998, the 50^th anniversary of the UDHR, President Arafat, like more than 13 million other individuals throughout the world, made a renewed commitment to uphold the rights contained in the UDHR.

The detention of hundreds of individuals outside any legal process breaches the UDHR. Article 9 affirms that:

“No one shall be subject to arbitrary arrest, detention or exile.”

Article 10 lays down the right to fair trial:

The rights of any person placed under arrest are spelt out in more detail by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly of the United Nations on 9 December 1988. Arrests should only be carried out according to the law (Principle 2). Principle 4 states:

“Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority.”

The arrested person should be told the reasons for his or her detention and brought promptly before a judicial authority who should be empowered to review his continued detention (Principle 11); he should have unrestricted communication, in private, with his legal counsel (Principles 17 and 18); he should have the right to regular family visits (Principle 19); he should have the right to trial within a reasonable time or to release pending trial (Principle 38). The Body of Principles, like the UDHR and other human rights standards, lays down categorically the absolute and unconditional prohibition of torture (Principle 6) and the right to “humane treatment and respect for human dignity” (Principle 1).

These rights are equally affirmed in the Palestinian Basic Law, passed by the Palestinian Legislative Council in 1996 but not yet signed by President Arafat: Article 11 states:

“1) Personal liberty is a natural right and shall be guaranteed and not harmed.

2) It is not permitted to arrest, search, imprison, restrict the freedom or prevent the movement of any person, except by judicial order in accordance with the provisions of the law. The law shall determine the period of detention on remand. Imprisonment or detention are not permitted in locations that are not subject to laws regulating prisons.”

Article 12 states:

“Every arrested person shall be informed of the reasons for his arrest or detention. He should be promptly informed of the nature of the charge brought against him and enabled to contact a lawyer and to be tried without delay.”

The Palestinian Authority has denied hundreds of Palestinians arrested for political reasons these fundamental rights. Political detainees have tended to be held outside any legal framework; they almost invariably are arrested without warrant; they are not charged; they are not brought promptly before a judge; and they are not brought to trial. The few who have been brought to trial have received only summary and grossly unfair trials before State Security Courts; since 1994 a total of more than 2,000 individuals have been held at some time for political reasons for days, months or years in the areas under the Palestinian Authority's jurisdiction; only one political detainee is known ever to have been brought to trial before a normal criminal court.³

“POLITICAL PRISONERS”

There are about 120 “political prisoners” who have been held by the Palestinian Authority without charge or trial for more than one year, in addition to about 100 held for less than a year. The vast majority are suspected sympathisers with Hamas and Islamic Jihad and most of them were detained during mass arrests by the Palestinian Authority following bomb attacks directed against Israeli civilians. It is possible that some “political prisoners” are prisoners of conscience: in certain cases, there is credible evidence to indicate that suspected Islamist sympathisers are being detained for extended periods for their non-violent opposition to the Palestinian Authority or to silence them from speaking about matters that could embarrass the Palestinian Authority.

Although some “ political prisoners ” have been arrested for criticising the Palestinian Authority and opposing the peace process, far more are believed to have been detained because of pressure from outside the Palestinian Authority to put down “terrorists.” This pressure comes primarily from Israel and partly from the US, which has invested resources into brokering a peace in the Middle East. The greatest danger to the peace process is seen by Israel and the US, as “terrorism” - attacks against Israeli civilians carried out by Hamas, Islamic Jihad and other armed groups - and frequent Israeli government statements have said that the only way to halt “terrorism” will be for the Palestinian Authority not only to lock up the “terrorists” but also to ensure that they are not released. Israeli government statements do not ask for “terrorists” to be detained without trial: they call for them to be “prosecuted.” But Israeli authorities themselves detain Palestinians without charge or trial under administrative detention orders or sentence them after unfair military trials on the basis of confessions extracted by torture. Therefore it is not surprising that the strong insistence on the need for the Palestinian Authority to detain suspected “terrorists” is accompanied by a failure to insist that this be done according to Palestinian law and international human rights standards.

This extrajudicial detention of “ political prisoners ” has existed since the establishment of the Palestinian Authority in May 1994. After September 1994 there were waves of arbitrary detentions as a result of Israeli pressure after the kidnapping of an Israeli soldier and suicide bombs in September and October 1994. These detainees were normally humanely treated but were held for days, weeks or months without being charged with any offence or brought before a judge. Lawyers might gain access as normal visitors, rather than as lawyers. Often the detainees were not even interrogated. Sometimes these detentions were in order to detect the perpetrators of violent acts or to detain those who might endanger the peace process by carrying out violent acts but frequently the detentions appeared to be at the behest of Israel.

The institution of the State Security Court in February 1995 appears to have been as a result of complaints by Israel and the US that Islamist “terrorists” were being detained without charge and released at will, instead of having been given heavy prison sentences. Thus, from April 1995, a number of those thought to have organized suicide bombs, recruited bombers, or members of the 'Izz al-Din al-Qassam brigades, the armed wing of Hamas, were tried in grossly unfair trials - secret and summary, often in the middle of the night, with military judges, prosecutors and defence - and given heavy prison sentences of up to 25 years. These trials were praised by prominent US officials. However, the outcry at the use of such mockeries of trials helped to limit their use, and the Palestinian Authority, since June 1995, has again tended to hold political opponents - mostly suspected Islamists - without charge or trial. Summary trials have more often been used against those whose extradition may be sought by Israel if they are not swiftly sentenced.

The largest wave of arrests in the Palestinian Authority was carried out after suicide bombings in February and March 1996. More than 1,200 suspected members of Islamist groups were arrested by Palestinian Authority security services in the West Bank and Gaza; they often spent weeks in incommunicado detention and remained in prison for months without charge or trial. Torture was widespread. Waves of arrests have continued to occur: for instance more than 150 alleged sympathizers with Islamist groups were arrested in 1997 and about 40 persons, allegedly linked to Hamas, were detained and subjected to torture in Ramallah in March and April 1998 in connection with the killing of Muhi al-Din al-Sharif, a prominent member of Hamas' military wing.

However, the hundreds of suspected Islamist activists detained without charge or trial have not benefited from the same media attention or international support. The pressure exerted by the Israeli Government upon the Palestinian Authority to keep suspected Islamist activists in detention has been great; the Israeli government has frequently complained about what it calls “the revolving door” - that is, that suspected Islamist sympathisers in detention have frequently been released after weeks and months, - and demanded that they stay in detention. Amnesty International has consistently raised with the Palestinian Authority the cases of those who suffer prolonged detention without charge or trial. Occasionally spokespersons have denied that there has been pressure on them to arrest; however, by the autumn of 1997 even those Palestinian ministers who had at one time denied pressure were prepared to agree that the pressure was immense. One Palestinian official at the Palestinian Authority's Ministry of Justice told an Amnesty International delegation in 1997 that those concerned with justice knew “that 80% of those we arrested had committed no offence either under Palestinian or under Israeli law”; they were just being arrested because of pressure from Israel, either because they were suspected of being Islamist activists or to “ make up the numbers ” and show that the Palestinian Authority was making a serious effort to act against “ terrorism. ”

When, following demonstrations and intense protests by families, and after many debates and interventions by the PLC, the Palestinian Authority eventually in January 1999 released about 40 prisoners held without charge or trial, the Israeli Government complained bitterly. “ It looks like a resumption of the revolving door. Actually we have no idea who the prisoners released are. This is another violation” [of the agreement] commented Prime Minister Binyamin Netanyahu.

“SECURITY PRISONERS”

No one knows the exact number of “security prisoners” (those suspected of collaboration with Israel) held by the Palestinian Authority, but it is estimated that there are at least 250 prisoners who have been held without charge or trial for more than one year. The majority of these prisoners are believed to be held by the istikhbarat (Military Intelligence), headed by General Musa Arafat. Human rights organizations do not have access to the istikhbarat's detention centres and the International Committee of the Red Cross was only given access in 1998.

The Palestinian Authority is not known to have put any person accused of “ collaboration ” with Israel on trial for his/her actions. One reason for the Palestinian Authority's reluctance to put such persons on trial may be Article XVI(2) of the Oslo II Agreement which states:

Palestinians who have maintained contact with the Israeli authorities will not be subjected to acts of harassment, violence, retribution or prosecution.

This provision of the Oslo Agreement was intended to discourage the Palestinian Authority from exacting retribution from the Palestinians who had worked on behalf of Israel during the occupation of the West Bank and Gaza Strip. Nevertheless, suspected “ collaborators ” have been arrested and the clause appears to be used by the Palestinian Authority as a pretext for depriving “security prisoners ” of their right to receive a fair trial.

Their detention, even without charge or trial, has frequently been privately or even publicly welcomed by virtually all sectors of Palestinian civil society who regard “collaborators” with Israel as having betrayed the Palestinian cause. Thus, especially during the first months of the Palestinian Authority, families of those detained were often silent about the arrest and detention of family members, either because they were ashamed of them or because they feared that speaking out would jeopardize their release. At the same time Palestinian human rights organizations who had campaigned against Israeli human rights violations over the previous years and were prepared to take up the cases of “political prisoners”, including members of Hamas or Islamic Jihad, tended to have an ambivalent attitude towards “ security prisoners ” whose cases they took up with more reluctance. Many of the families of “security prisoners” deny that they were involved in “ collaboration ” , and labels of collaboration have, indeed, often been used by the Palestinian Authority to slur some political opponents. Those detained for alleged “collaboration” are faced, therefore, with an accusation which stigmatizes them whilst denying them the means to answer the charge and defend themselves, as is their right.

Ever since the elections in January 1996 many PLC members have been vocal in their criticism of the Palestinian Authority for detaining political detainees without charge or trial for long periods. Members of the PLC have visited detainees said to be in incommunicado detention or tortured and have also on many occasions visited “ political prisoners ” who have launched hunger strikes demanding to be brought to trial or released.

On 13 January 1999, while a peaceful demonstration of families of “ political prisoners ” took place outside, the PLC debated the question of political detention without charge or trial. The PLC called for the prohibition of political detention and the immediate release of those detained only for political reasons. A Special Committee was established to monitor the implementation of the decision by following it up with the Minister of Justice and the Minister of Parliamentary Affairs. President Yasser Arafat promised to release “ political prisoners ” on the occasion of 'Id al-Fitr, in January. In fact only about 40 “ political prisoners ” were released.

The Palestinian High Court

The Palestinian judiciary should be an important check to prevent the Palestinian Authority from indulging in arbitrary exercise of power, including unlawful detentions of political prisoners. The Palestinian Authority has however seriously undermined the rule of law and damaged confidence in the Palestinian courts by failing to enforce Palestinian High Court judgments ordering the release of political detainees and, on two occasions, removing judges from office without good cause. Amnesty International is unaware of any single case where the High Court has ordered the release of a political detainee on the grounds that he or she was unlawfully detained and the Palestinian Authority has immediately complied with the order and released the detainee.

Many Palestinian human rights organizations, such as the Palestinian Society for Human Rights and the Environment (LAW), the Birzeit Human Rights Action Project, the Jerusalem Centre for Legal Aid, the Palestinian Centre for Human Rights (PCHR), and the Palestinian Human Rights Monitoring Group (PHRMG) as well as the Palestinian Independent Commission for Citizens' Rights (PICCR) have challenged the legality of detention without charge or trial before the Palestinian High Court. In most such cases brought before it, the High Court has found detention without charge unlawful and has ordered the Palestinian Authority to immediately release the applicants. There are currently more than 50 applications for habeas corpus pending before the High Court. The vast majority of these cases have been brought on behalf of “ political prisoners ” but Amnesty International knows of at least one case which is being brought on behalf of a “ security prisoner. ”

The Palestinian Authority, as represented in the courts by the office of the Attorney General, has generally not been cooperative with the High Court. The Attorney General's office frequently requests an adjournment on the grounds that information requested by the court has not yet been obtained, even after the Palestinian Authority has been ordered to show cause by the court as to why a person is in detention. In a serious violation of the rule of law, the Palestinian Authority and its security services have failed to implement High Court orders for the immediate release of detainees. In a number of cases, the Palestinian Authority has released detainees months after the High Court ordered their release; in other cases they remain in detention. For example, the Palestinian High Court ordered the release of Rajab al-Baba, who was arrested on 17 March 1996, on 28 December 1997; he was released on 5 April 1998. The release of Mahmud Muslah, who was arrested on 5 September 1997, was ordered on 30 November 1997. As of 19 March 1999, he was still detained in Ramallah.

On several occasions, the High Court has declined to order the release of detainees after the Palestinian Authority has claimed that the detainee's case is before the State Security Court. The court has ruled that it lacks jurisdiction over such cases. However, in these cases, even though the Palestinian Authority has argued before the High Court that the detainee's case was before the State Security Court, the detainee has never actually been prosecuted. The Palestinian Authority appears in such cases to use the argument that a detainee's case is before the State Security Court as a means to avoid a High Court order against the Palestinian Authority for the detainee's release. For example, the Palestinian Centre for Human Rights (PCHR) submitted a petition to the High Court for the release of Ibrahim al-Maqademeh, a prominent figure in Hamas in the Gaza Strip, who was arrested in April 1998. During the hearing of the application on 20 July 1998, the Attorney General's representative informed the court that Ibrahim al-Maqademeh had been charged before the State Security Court and argued that the court therefore did not have jurisdiction in the case. The PCHR stated that for two months his lawyers had tried to find out from the Attorney General's office why he was detained without success. The High Court ruled that it had no jurisdiction over the case. As of 19 March 1999, Ibrahim al-Maqademeh was still in detention and he had not been prosecuted before the State Security Court.

The Palestinian Authority has also on two occasions removed judges without good cause. This type of behaviour is in flagrant contravention of the UN Basic Principles on the Independence of Judiciary which requires that the independence of the judiciary should be assured (Principle 1) and that there should be no unwarranted interference with the judiciary and judicial decisions (Principle 4). In August 1997 the Palestinian High Court, sitting in a

OUTCOME OF CASES KNOWN TO AMNESTY INTERNATIONAL WHERE THE HIGH COURT ORDERED RELEASE OF POLITICAL DETAINEES