On 27 July 2007, Attorney Hassan Jabareen, the General Director of Adalah, appeared and gave his testimony before the UN Special Committee to Investigate Israeli Practices Affecting Human Rights of the Palestinian People and Other Arabs of the Occupied Territories. At the hearing, held in Amman, Jordan, Attorney Jabareen provided information regarding recent developments concerning the Israeli Supreme Court, the legal impact thereof on the Gaza Strip, and the revocation of Jerusalem residency rights and the ban on family unification. The committee is a subsidiary organ of the United Nations General Assembly, and will submit its report to the General Assembly in October 2007. The current committee members are Mr. P. Kariyawasam (Sri Lanka), Chairman, Mr. M. B. Ly (Senegal), and Mr. H. Ali (Malaysia). The following is a summary of the testimony given by Attorney Jabareen.
Recent Developments Concerning the Supreme Court of Israel
In December 2006, Chief Justice Aharon Barak retired from the court after 28 years (1978-2006), and Justice Dorit Beinisch became the Chief Justice. Since the beginning of her tenure, a serious attack has been launched by the Israeli government and the Minister of Justice, Daniel Friedmann (a strong critic of what he views as the Supreme Court’s usurpation of the powers of the legislature) on the Supreme Court. The court can be considered under siege.
For example, Minister Friedmann has proposed excluding all currently sitting justices from serving as members of the judicial appointments committee and having a separate body prepare a list of nominees, thereby increasing political influence in judicial appointments. To date, no candidate has been appointed to the Supreme Court without the unanimous consent of the three justices on the appointments committee. Friedmann has also sponsored a bill limiting the term of the Supreme Court presiding justice to seven years; historically, justices served until their 70th year when mandatory retirement takes effect. Friedmann is also trying to limit the court’s power of judicial review of Knesset legislation. This attack influences the Supreme Court in general, and in its cases concerning Palestinians in Israel and Palestinians in the Occupied Palestinian Territory (OPT) in particular.
In general, the Supreme Court can be characterized as an activist court concerning cases involving Israeli Jewish individuals/issues, and primarily a formalist court concerning cases involving Palestinians. The Supreme Court is not ready to intervene in cases involving Palestinians: there have been no such cases of intervention since January 2007.
Regarding the application of favorable Supreme Court decisions involving the rights of Palestinians, the Israeli government is reluctant to implement Supreme Court decisions that defend Palestinian rights. For instance, the Supreme Court ruled in December 2006 that a concrete barrier erected around the West Bank city of Hebron was an attempt to defy the court’s previous ruling to prevent the state from constructing the separation Wall along the road, and ordered the army to remove the barrier within six months. The state did not comply with the court’s ruling, however, and in July 2007 the court again issued an order to the army to implement its decision and to dismantle the barrier.
For its part, the Knesset wishes to overturn favorable Supreme Court decisions involving Palestinian rights. For example, in December 2006, a number of human rights organizations including Adalah obtained a landmark Supreme Court decision that Palestinian may seek compensation in Israeli courts for damages caused by the Israeli military to Palestinians in the OPT. However, the Knesset is currently considering a new law that aims to circumvent this decision. The new law was proposed by the Ministry of Justice and seeks to exempt Israel from paying compensation for torts to Palestinians, at least in Gaza. No serious criticism has been leveled against this bill by Jewish Israeli lawmakers.
2. The Legal Impact on Gaza
A. Karni Crossing
One implication of the infighting between Fatah and Hamas and the full takeover of Gaza by Hamas in June 2007 is that Israel claims to have no effective control over Gaza. In June and July 2007 Adalah, Al Haq, the Al Mezan Center and the Palestinian Center for Human Rights–Gaza filed a petition to the Supreme Court demanding that the Karni crossing be re-opened to allow essential goods and materials to get in and out of Gaza. They argued that the closure of this main crossing since mid-June 2007 was creating a humanitarian crisis.
The state claims that Israel previously coordinated the Karni crossing with the Palestinian Authority, but that as Hamas is a terrorist organization the state cannot deal with them. Therefore, according to Israel, there are no Palestinian partners for matters relating to Gaza.
B. Criminal Procedure Law – Detention of “Security Suspects”
In June 2006, the Knesset enacted The Criminal Procedure (Detainees Suspected of Security Offenses) (Temporary Provision) Law – 2006. The law stipulates harsher criminal procedure laws for all detainees charged with “security offences”, but is discriminatory in its application since the overwhelming majority of “security suspects” are Palestinians from the Gaza Strip. According to statistics obtained from the Israel Prison Service, as of 6 November 2006, from a total 9,498 “security prisoners,” only 12 were Jewish (letter sent from the Israel Prison Service to Adalah, 6 November 2006).
The law lacks essential procedural safeguards for individuals suspected of security offences. The main legal deficiencies in the law are that it:
1. Allows for the detention of a suspect for up to 96 hours before being brought before a judge, twice the period of 48 hours allowed under the Israeli Criminal Procedure Law;
2. Allows for a detainee to be held for period of 35 days without being indicted, as opposed to a period of 30 days under the Criminal Procedure Law;
3. Permits the detention of a suspect remanded by a court for a period of less than 20 days to be extended by the court in absentia for the rest of a period of up to 20 days from his original detention if the original detention was ordered in his presence. During this period, the suspect is also denied contact with legal counsel;
4. Provides, as does the Criminal Procedure Law, for up to 21 days of detention without access to an attorney, which is incompatible with international human rights law and standards.
The law was enacted after Israel’s “disengagement” from the Gaza Strip, following which Israel no longer applied the military orders to “security suspects” from Gaza. Thus the harsh provisions and legal deficiencies in the law have an impact primarily on the population of Gaza.
C. Seeking Criminal Investigation for Killings and Extensive Home Demolitions in Gaza in 2004
In 2004, the Israeli army conducted major military operations in Gaza which resulted in the killings of civilians and extensive home demolitions. The two major operations were “Operation Rainbow” (18-24 May 2004) and “Operation Days of Penitence” (30 September-15 October 2004). In April 2007, Adalah filed a petition to the Supreme Court demanding that the Attorney General open a criminal investigation into the killing of civilians and extensive home demolitions which resulted from these two operations. Adalah argued that the acts committed by Israeli military commanders and officers in the two operations are criminal offenses under Israeli and international law; in both operations, the Israeli military carried out willful killings and extensive and wanton destruction of civilian property, classified as grave breaches under the Geneva Conventions IV and thus constitute war crimes.
Adalah expected the Attorney General to ask the court to dismiss the case; however, the Attorney General and the army’s Chief Advocate General (CAG) responded that the case should be heard. The CAG replied that the army has an interest in the Supreme Court hearing these cases so that it can show that it took all the necessary measures. This case is pending.
3. Revocation of Residency Rights and Ban on Family Unification
A. Hamas Case – Members of the Palestinian Legislative Council from Jerusalem
Immediately following Hamas’ victory in the Palestinian legislative elections held in January 2006 and the capture of Israeli soldier Gilad Shalit in Gaza in June 2006 the Minister of the Interior revoked the Jerusalem residency rights of four Hamas members of the Palestinian Legislative Council. According to the Interior Ministry, the men are either loyal to Israel or to a foreign entity. In May 2007, Adalah and the Association for Civil Rights in Israel (ACRI) submitted an amicus brief to the Supreme Court in which they argued that, based on international law, Israel cannot revoke the residency of the PLC members and forbid them from living in Jerusalem, as this amounts to an illegal deportation from an occupied territory. Adalah and ACRI also used the advisory opinion of the International Court of Justice regarding the status of Jerusalem.
Adalah and ACRI also stressed that, under Israeli law, residency and citizenship rights cannot be stripped for political reasons; the PLC members ran in open elections that were observed by the world and approved by Israel. Therefore, Israel cannot use their election to revoke their residency. Furthermore, if Israel does so, this precedent will lend legitimacy to the deportation many Palestinians who are natives of Jerusalem.
B. New Citizenship Law Case
The Citizenship and Entry into Israel Law was initially enacted as a temporary order in 2003, banning Palestinian spouses from the OPT married to Israeli citizens – overwhelmingly Palestinian citizens of Israel –from living together in Israel. In May 2006, the Supreme Court, sitting as an expended panel of eleven justices, rejected petitions challenging the law in a 6-5 split. The sixth justice, who joined the majority decision, ruled that the law was disproportionate but should nonetheless not be overturned, and that the state should be allowed six months to ease the restrictions on family unification. In March 2007, rather than easing the ban, the Knesset expanded the law to exclude spouses from “enemy states” defined in the new law as Syria, Lebanon, Iraq, Iran. Palestinian citizens of Israel have familial and other relations with Palestinian refugees living in Syria and Lebanon. The Knesset also voted to extend the applicability of the law until July 2008.
In May 2007, Adalah filed a petition against the new law, arguing that it is racially discriminatory and violates the right of Palestinian citizens to family life. At the first hearing on the petition, Chief Justice Beinisch, who was part of the minority decision of the court which in May 2006 voted to overturn the law, nevertheless stated that her interpretation of the legal situation surrounding the law is that there is a final court decision upholding it. This reading of the decision differs fundamentally from that argued by Adalah and other petitioners challenging the law.The next hearing on the case is scheduled for October 2007. There is little scope for optimism regarding the result of this case given that the Supreme Court is under attack and therefore reluctant to intervene in cases involving Palestinians.
Significantly, in March 2007 the UN CERD Committee issued its Concluding Observations on Israel, stating that:
The Committee recommends that the State party revoke the Citizenship and Entry into Israel Law (Temporary Order), and reconsider its policy with a view to facilitating family reunification on a non-discriminatory basis. The State party should ensure that restrictions on family reunification are strictly necessary and limited in scope, and are not applied on the basis of nationality, residency or membership of a particular community.