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 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.

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.

Powers of appropriation

Jayyous is a village of 3,800 people dependent on agriculture. It has 12,000 dunums of land (one dunum is one quarter of an acre), and the Israeli separation barrier has isolated 9,200 on the west side with a distance of up to 6.5km from the 1949 internationally recognised armistice line known as the Green Line. In 1988 an order came from the Israeli Military Governor of the district, giving notice 1,362 dunums of Jayyous are state land. There were 30 days to object. After eight years the military court issued their decision. Eighteen out of 79 farmers lost all their land and others lost a part.

Zufin is a settlement built on land already taken from Jayyous. It was founded in 1989. 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 has made plans to build the barrier round as many as it can. The settlements are illegal under international law and the barrier has been declared illegal so far as on occupied land in the advisory opinion of the International Court of Justice of 2004.

How does the state of Israel take land owned and occupied by Palestinians? In 1979 the Israeli military government in the Occupied Palestinian Territories (West Bank, East Jerusalem and Gaza) barred the public, including their legal advisers, from access to land registration records and they have never reopened. They carried out a survey of registered land and the registration documentation that supported this. This was vital to the success of the settlement project and it was carefully guarded. Since that date the Palestinian public have been denied access to land records. To quote Ariel Sharon: ”We are going to leave an entirely different map of the country that it will be impossible to ignore.” And Menachem Begin: "Settlement in the occupied territories is the soul of Zionism.”

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 also150km of paved roads and 500 dunums 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 East Jerusalem.

The power to declare land as state land is given by the Israel military legislation to the Custodian for Government Land and Absentee Properties. The Israeli military argued that non-registered land in the West Bank was public land. Palestinians with non-registered land had to prove they had lived on it or cultivated continuously for not less than 10 years. Under Israeli law, 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 allocated as state land, a fait accompli before the case was even heard.

Our landlord and farmer in Jayyous, Abu Azzam, told me about other ways of getting land from farmers in possession. The Ottoman law provided that land could be taken by the state if not cultivated for three years. He told me that proof of non-cultivation was by aerial photographs when there were no crops in the ground and he saw land lost in Jayyous by this means. Or it would be shown the land was covered in “natsch”, as plentiful in Palestine as heather on Scottish hills, as evidence of non-cultivation. Then there was a law of the period of the British Mandate (1919-1948) whereby land with more than 50% rocks could be acquired by the state as not suitable for agriculture. He successfully resisted this by selling his sheep and goats and his wife’s jewellery to pay for work to remove or crush the stones. Land could also be acquired for roads, water and sewage. Finally, if they could not use any of these, it was claimed to be necessary for military security. This was the ground taken for the wall/barrier.

A state would be expected to pay for ground purchased by compulsion. Abu Azzam would say, ”You ask me if I sell my land; you should ask me if I would sell my wife.“

Some owners have sold land, and particularly in the British Mandate period sales were carried out by absentee landlords living in Lebanon. Many dunums have been acquired by the Israeli state from individuals 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. This did not happen under British or Jordanian occupation. The Convention also provides that Israel has an obligation to maintain the local government, judicial systems and existing law unless absolutely prevented, all of which it has clearly failed to do.

Israel’s scheme of acquiring land for its settlement programme went as far as taking 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, despite his client being alive and well a few miles away in Jerusalem. In early liaisons, the Custodian advised him not to go to court, indicating by gestures the land had already been taken. The Custodian had leased the land and work had already begun. It was leased to the World Zionist Organization, and the lease prohibits a sublease to non-Jews and requires the consent of the Defence Minister. Work on establishing the new settlement was the responsibility of the Jewish Agency, a sister organisation of the World Zionist Movement. Shehadeh asked for an injunction and was told by the court he must guarantee $250,000 to compensate the Jewish Agency for losses if there was a delay in carrying out the work contracted. The work continued throughout the case. He worried about the integrity of the court when the president of the court twice tried to get him to settle the case for some money for his client. An Arab youth was called to testify previous use by the Jordanian army. Shehadeh objected strongly. The witness never showed his face, he looked too young to remember this evidence, the state attorney would not disclose his identity and the court allowed the evidence. The state attorney and the panel of judges were constantly consulting with one another. Shehadeh describes the proceedings as a farce and wondered if he was lending legitimacy to an illegal court.

A few months later, the judgment of the Military Objections Committee was mailed to him. “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”. How can any transaction supersede a prior, registered title, you ask? The court based it on article 5 of Military Order 58 whereby if the Custodian when he entered into a contract, believed in good faith 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 a mockery was made of the law. When he asked the Land Registry if this 49 year lease had been registered as required by law, he found it wasn’t. It was not even found at the Military Headquarters of the West Bank. It was registered at the Israel Land Authority where all land in Israel is registered. Israel regards all land on which Jewish settlements are established as Israeli land.

In Jayyous there is land which 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. He must first not be deemed a security risk. If he passes that test, he must exhibit a land document in Israeli form, a legal certificate of inheritance and a map to show the land is on the other side of the barrier. The Israelis divide the inheritance between all inheritors so that ownership spreads into wider numbers until the Israeli state deems the owned area too small to be viable. The way the Israelis apply the name of the owner of the land means that with each generation the connection with the land diminishes and in 20 years there may be no permits. If the land is not farmed due to loss of permit for whatever reason, it will be taken as state land under their interpretation of the Ottoman law.

In regard to the security test, some are given a permit for 12 months, some six months and in the case of Abu Azzam, who has been active in the Land Defence Committee, he only gets three months and has had spells without a permit. You can lose a permit for staying overnight on the land. Jayyous farmers often stayed on their land at certain seasons and had shelters for the purpose. Farmers who don’t get permits often arrange for others to work their land, but this reduces their earnings from the land.

The land is not only a source of income; it has always been a source of recreation for all ages. Families would eat a meal under the trees, children would play there and school trips went there on nature hikes.

The official reason for building the barrier, as stated to the court, is security, “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… examined in this report”. This is consistent with the settlement master plan above referred to. 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”.

Palestinians also think that the barrier is intended to break up the West Bank into three areas, rendering a two state solution unviable. The UNOCHA maps of the barrier, erected and proposed, suggest this may be right.

Caught by the system

Palestinians have resisted, and do resist, the occupation, mostly by non-violent protest. Physical resistance is difficult against an armed occupier. Most visible violent resistance is by youths throwing stones. Palestinian youths and young men have a high risk of prison for any serious show of resistance.

At any time there are 8,000 Palestinians in Israeli prisons for various reasons. Of these approximately 10% are held under administrative detention, in December 2008 around 650. Administrative detention is permitted under the Fourth Geneva Convention, but its use by the Israeli state is a gross abuse of that Convention. They are held not as suspects under a particular charge but on the grounds 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 renewed indefinitely. Statistics from Yesh Din (see below) show that extensions were granted more often than the original orders in each of the years 2004, 2005 and 2006. Amnesty International takes up these cases “and get garbage explanations”. B’Tselem say that Israel’s practice violates the rigid restrictions of the Convention.

The military courts play a role in these proceedings. In most cases the detainee is not aware of the content of the evidence against him. It holds Palestinians for prolonged periods without informing them of the suspicions against them. In April 2009 I learned of one person from Jayyous administratively 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 (it means There is Law) Volunteers for Human Rights, an Israeli organisation founded in 2005, published a report called Backyard Proceedings, on its research into the implementation of due process rights in the military courts in the occupied territories.

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”. Indictments for hostile terrorist activity have grown from 528 in 1998 to 3,523 in 2006.

The report reveals a series of grave defects and lapses. Military courts have operated there since June 1967. Their report is based on 800 sessions of observing, data provided by the Israeli Defence Force, interviews with military courts personnel and defence attorneys, and additional research.

The legal authority for the military courts derives from article 66 of the Fourth Geneva Convention, which sets forth minimum standards to ensure due process in these courts. The judges are military officers, either regular or reserve. The prosecutors are officers of the military advocate general, some not yet legally qualified. There are a few dozen Israeli and Palestinian defence attorneys. The defendants are Palestinian civilians, both minors and adults. While legally subject to the jurisdiction of these courts, Israelis are not tried in these courts. There are two courts within the West Bank and there are four branches of these courts, all the branches being within the state of Israel.

The report examined different aspects of due process:
1. The presumption of innocence. The rate of acquittals does not indicate 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.
2. The right to a public trial. Security legislation says they are public, but the report notes that there are severe restrictions on family attending (only two); others must submit an application; and some hearings are heard in the four branches, all of which are in Israel and due to current policy this means Palestinians cannot attend. These restrictions on the public attending and the absence of publicity of their verdicts means the military courts lack public scrutiny.
3. 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. Israeli security legislation ignores both. Indictments are presented only at hearings for “detention until the end of proceedings” (usually some time after arrest), and are in Hebrew.
4. 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) Israeli and Palestinian lawyers who do get access are frequently harassed at detention facilities and discouraged from going, and there are concerns about 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. It is questionable therefore if there is effective assistance of counsel.
5. The right to be tried without undue delay. That is “promptly”, “without undue delay” and “within a reasonable time”. The legislation allows for detention for eight days without appearance; repeated extensions up to an accumulative 90 days (180 days if allowed by an appellate judge); no limit on detention between the completion of investigation and filing an indictment; and no limit between filing an indictment and commencement of proceedings. However a trial must conclude within two years of the indictment. The result is prolonged legal proceedings.
6. 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, which include threats and physical methods, and this combined with the prohibition or restriction on some detainees getting legal advice during their interrogation brings many to court confessing the actions attributed to them or being incriminated by others; (ii) the heavy case load 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.
7. Interpretation. The proceedings are against predominantly Arabic speaking defendants and are in Hebrew. Interpreters are unqualified soldiers. Some do their best, but most are not good enough and receive no training.
8. Minors. A minor becomes an adult at the age of 16. The age of the defendant is determined at the time of sentencing. The military courts have no special courts for minors, who stand trial in the military courts like adults.

Arabic speaking families from country places like Jayyous have difficulty penetrating the system to get information about family members who are detained. There is little hope that the detained person will be well treated. Yesh Din say the Shin-Bet (Israeli Security Service) methods "include threats and physical measures”. B’Tselem say 85% of detainees are tortured during interrogation. A Jayyous man told me that after 100 days of detention and interrogation, he could not see or walk properly. I asked to speak to another local man after detention and was told by a reliable contact: “He may not be ready to speak. It is what they do to you in prison”. The UN special rapporteur, in his report on the situation of human rights in the Palestinian Territories 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”.

Yesh Din have informed me that there has been no significant change in the proceedings of the military courts since their report was published.