Unequal before the law

I spent three months from January 2009 in the Palestinian village of Jayyous, on a programme of the World Council of Churches called the Ecumenical Accompaniment Programme in Palestine and Israel (EAPPI). In Jayyous I was one of four internationals, and there were five other teams in my group, Group 30, based in Hebron, Bethlehem, Jerusalem, Tulkarm and Yanoun (a village East of Nablus).

The aim of the programme is for an end of the Israeli occupation of Palestine, which has gone on since 1967. The programme has been running for six years.

My motive for going, having spoken to those who had been, was that the programme was both worthwhile and interesting. We were given good training by the Quakers, the sending organisation, and were well prepared, but the discovery of what life can be like under an occupation was still quite shocking.

Our mission

Our role was to be impartial, but not neutral in regard to breaches of human rights. Provided you acted sensibly there was very little restriction on where you could go or who you could speak to, but places could become “closed military areas” and the programme does not operate in Gaza. I think it was possible for each of us to get a reasonably accurate picture of life under occupation within our placements.

I was the only lawyer in Group 30. I was surprised by the degree of disregard for international law, humanitarian law, human rights and legal rights. Having experienced practice in Scotland in conveyancing and court, it seemed of interest (i) how land could be “confiscated” by a state, and (ii) how a state could so ignore due process.

I investigated the first because in Jayyous there was constant reference to “confiscation” of land; and the second, because an Israeli volunteer human rights worker came to Jayyous to investigate a case we had reported and she gave me a published report of her organisation.

The host village

Jayyous is a village of 3,800 people dependent on agriculture. It has 3,000 acres of land. The Israeli separation barrier has isolated 78% on the west side with a distance of up to 6.5km from the 1949 internationally recognised armistice line known as the Green Line.

Zufin is a settlement built in the 1980s on land taken from Jayyous. The present population is 1,300, but there are expansion plans encompassing an area 10 times larger. Zufin residents are Israelis who have rapid access to Tel Aviv and the Trans-Israel Highway. Israel says the barrier is required to provide security for their citizens. They could have legally constructed the barrier along the Green Line, but that would have defined the Israeli boundary and excluded the citizens of Zufin from “protection”. There are many Israeli settlements in the West Bank and Israel has built, or made plans to build, the barrier round as many as it can.

In the 1970s Israel carried out a survey of registered land in the Occupied Palestinian Territories (OPT), comprising West Bank, East Jerusalem and Gaza. A settlement master plan was drawn up to settle 80,000 Israeli Jews in the West Bank by 1986 in 25 settlements and 20 outposts at a cost of $2bn, with also 150km of paved roads and 125 acres of industrial land per annum. Resources would be monopolised by settlers, and settlements would spread across the entire area, isolating Palestinian towns and villages. In 2009 there are now 470,000 settlers, about half in the West Bank and half in Jerusalem.

Powers of appropriation

The power to declare land as state land is given to the Custodian for Government Land and Absentee Properties. Israel says non-registered land in the OPT is public land. Palestinians with non-registered land have to prove they have lived on it or cultivated continuously for 10 years. Failing that proof, it “reverts” to those whom the Israeli state regards as rightful owners, the Jewish people, wherever they may be. Legally this is not sustainable. Some Palestinians boycotted the Israeli courts where such challenge was necessary. Often the notice of declaration of state land did not reach the Palestinian owner, and when it did the time for appeal had passed. Also, Palestinians found it difficult to compete against the military authorities at the appeals hearing. Even before the state proved land as state land, it was often leased as state land, a fait accompli before the case was heard.

Israel also uses an Ottoman law that land can be taken by the state if not cultivated for three years. Proof of non-cultivation was by aerial photographs when there were no crops in the ground. There is a law of the period of the British Mandate (1919-1948) whereby land with more than 50% rocks can be acquired by the state as not suitable for agriculture. Land can also be acquired for roads, water and sewerage. Finally, if they cannot use any of these, acquisition was claimed to be necessary for military security, such as ground taken for the barrier.

One hears occasionally of land being sold to Israel, but much more about the large areas acquired by the Israelis from Palestinians without payment.

Obstacles in challenging

The expropriation of private land under occupation and the transfer of the members of the occupying power into the territory are contrary to the Fourth Geneva Convention. In 2004 the International Court of Justice, in an advisory opinion, declared Israel’s barrier illegal so far as erected on the OPT.

Israel has even taken land registered in private ownership, as described by lawyer Raja Shehadeh in his book Palestinian Walks. His dealings were with the Custodian of Absentee Properties, who advised him not to go to court, indicating that the land had already been taken. The Custodian had leased the land to the World Zionist Association and work had already begun. Shehadeh describes the proceedings as a farce and wondered if he was lending legitimacy to an illegal court.

When the judgment was issued it said: “There is no doubt in our eyes the appellant is the legal owner of the land in question.” Yet his client lost because the lease by the Custodian to the World Zionist Organization was “legal, strong and binding”. The court founded on a provision whereby if the Custodian when he entered into a contract, believed in good faith that the property was abandoned, the contract would not be void and null “even if it were proved that the property was not at that time abandoned”. In the proceedings no requirement was placed by the court to establish good faith and Shehadeh concluded that a mockery was made of the law.

In Jayyous there is land that still belongs to Jayyous farmers but which they can only access through a gate in the barrier, opened and shut by soldiers at specified times. The farmer must show a permit. Only 18% of people with land have permits. If the land is not farmed due to absence of permit for whatever reason, it will be taken as state land under their interpretation of the Ottoman law.

The reason given by Israel for building the barrier is “to prevent terror attacks”. Examination by the Israeli human rights organisation B’tselem of the route of the barrier around about 60 settlements, shows that the barrier “more or less runs along the borders of the outline plans of each of the settlements”. The B’tselem report of 2005 is entitled “Under the Guise of Security”, and subtitled “Routing the Separation Barrier to Enable the Expansion of Israeli Settlements”.

Many commentators think the barrier is intended to break up the West Bank into three areas, rendering a two state solution unviable. The UN maps of the barrier, as erected and proposed, support this conclusion.

Fraser Ritchie was in practice as a solicitor from 1968 to 2004 and a partner in Miller Hendry, Dundee and Perth. He has served as a member of the Council of the Law Society of Scotland, as Dean of the Faculty of Procurators in Dundee, and as a member of the Scottish Solicitors’ Discipline Tribunal in 1987, including as Chair from 2001 to 2005.

A fuller version of this article can be found online at www.journalonline.co.uk/extrasa

 Caught by the system

Rules of detention are also applied in a manner inconsistent with the Geneva Convention on due process

At any time there are 8,000 Palestinians in Israeli prisons (Fraser Ritchie writes). About 10% are held under administrative detention (650 in December 2008. Administrative detention is permitted under the Fourth Geneva Convention, but its use by the Israeli state is an abuse of that Convention. They are held not as suspects under a particular charge but on the ground that they present a future risk. There is no charge and the prisoner is held by order of the Administrative Commander for a period of six months; this order can be renewed indefinitely. Amnesty International takes up these cases “and get garbage explanations”.

B’Tselem say that Israel’s practice violates the rigid restrictions of the Convention. In most cases the detainee is not aware of the content of the evidence against him. Palestinians are held for prolonged periods without informing them of the suspicions against them. I learned of a man from Jayyous so detained, an academic aged 39 whose detention for two periods of six months has in April 2009 been renewed by order for another six months.

What of cases where there is an indictment? In December 2007, Yesh Din, an Israeli human rights organisation, published a report on lack of due process rights in the OPT.

In the five years to end 2006, 43,390 cases were dealt with by the military courts. Of these, 33% of indictments were for hostile terrorist activity, 14% for disturbances of the peace (including stone throwing), 14% for illegal presence in Israel, 34% for traffic offences and 5% for “criminal”.

Minimum standards

The legal authority for the military courts derives from the Fourth Geneva Convention, which sets minimum standards to ensure due process. Israelis are not tried in these courts. There are two courts within the West Bank with four branches within the state of Israel. Palestinians residing in the OPT, including lawyers acting for clients, are often unable to attend at the branches in Israel.

The report examined different aspects of due process:

The presumption of innocence. The rate of acquittals does not indicate that the presumption is scrupulously observed. In 2006, out of 9,123 cases, 23 or 0.29% of defendants were found entirely not guilty. Nor does the rate of release of a suspect prior to indictment. At 118 sessions attended by Yesh Din only one suspect was released prior to filing of an indictment.

The right to a public trial. Security legislation says trials are public, but the report notes that restrictions on the public attending and the absence of publicity of their verdicts means the military courts lack public scrutiny.

Right to be notified of the charges. International law requires that a defendant be notified of the charges against him, in a language he understands. The Israeli legislation ignores both. Indictments are presented only some time after arrest and are in Hebrew.

Right to counsel and to the effective assistance of counsel. In the majority of cases there is representation, but (i) Palestinian lawyers are mostly unable to visit their client, if held in Israel; (ii) there are concerns about harassment and violation of attorney/client privilege; (iii) in 60% of cases there is no access for up to one month; (iv) detention extensions are based on confidential material disclosed to the judge alone; (v) the case material is in Hebrew; and (vi) attorneys have no access to current regulations and rulings.

The right to be tried without undue delay. Legislation allows for eight days’ detention without appearance; repeated extensions to a total of 90 days (180 if allowed by an appellate judge); no limit on detention between completing investigation and filing an indictment; and no limit between filing an indictment and commencement of proceedings. A trial must conclude within two years of the indictment. The result is prolonged legal proceedings.

The right to present evidence and witnesses. In 2006 only 1.42% of cases went to full trial: 95% ended in plea bargaining, which suits both parties, because of (i) the interrogation methods of the security forces; (ii) the heavy caseload on all parties; (iii) the fear that going through a full trial brings a worse result; and (iv) a lack of trust of many Palestinians and their families in the fairness of a military judge.

Interpretation. Proceedings are against predominantly Arabic speaking defendants and are in Hebrew. Interpreters are unqualified soldiers.

Minors. A minor becomes an adult at the age of 16. Age is determined at the time of sentencing. The military courts have no special courts for minors, who stand trial like adults.

There is little hope that detainees will be well treated. B’Tselem say 85% are tortured during interrogation. The UN special rapporteur, in his report on the situation of human rights in the OPT of January 2008, says “the treatment of children is equally disturbing. According to Defence for Children International (Palestine Section) children are on average detained for between 8 to 21 days before being brought to court; denied the presence of a parent or lawyer during interrogation; cursed, threatened, beaten and kept in solitary confinement during interrogation”.