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Palestinian prisoners in Israeli jails has, on April 30, 2003, issued a document |
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Jurisdictional arrangements pursuant to the Oslo Accords and the implementation laws passed by the Knesset and by the military government in the occupied territories: Preface 35. On September 13, 1993, the Israeli government and the PLO, as the representative of the Palestinian people, signed the Declaration of Principles on Interim Self-Government Arrangements (hereinafter: “the Declaration”). The Declaration was intended to pave the way for a just, viable inclusive peace arrangement and historic conciliation by means of a consensual peace process, and comprised the basis of the peace negotiations between Israel and the Palestinian people. 36. The Declaration defined the goal of the negotiations, the establishment of a self-governing Palestinian authority in the interim stage, and a permanent-status arrangement, based on resolutions 242 and 383 of the UN Security Council (see Article 1 of the Declaration). The Palestinian Authority, or as it is referred to in the Declaration, “the elected Council,” is intended to govern the areas of the West Bank and the Gaza Strip during the interim period, that would continue for a maximum period of five years, ending with the permanent-status arrangement.
37. Following the Declaration, the parties signed additional agreements, such as the Gaza and Jericho Agreement, of May 4, 1994, the preparatory Transfer of Powers and Responsibility Agreement, signed at Erez Checkpoint on August 29, 1994, the Protocol on Additional Transfer of Powers and Responsibility, signed in Cairo on August 27, 1995. Finally, on September 28, 1995, the parties signed the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (hereinafter: “the Interim Agreement”), which ratified all the preceding agreements and arranged all the relevant matters in interim arrangements for the interim period. 38. The Israeli government and Knesset approved the Interim Agreement, and to implement it, the State of Israel enacted the Implementation of the Interim Agreement relating to the West Bank and the Gaza Strip (Jurisdiction and other Provisions) Law, 5756 – 1996 (hereinafter: “the Implementation Law”). The Knesset also amended the Extension of Validity of the Emergency Regulations (Judea and Samaria and Gaza Strip – Adjudication of Offenses and Legal Assistance) Law, 5728 – 1967 (hereinafter: “the Legal Assistance Law”). 39. The purpose of these legislative enactments was set forth in Section 1, the purpose being to implement the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, including its appendixes and accompanying documents. Thus, the Respondent will argue that the State of Israel is bound to act in accordance with the provisions of the Interim Agreement not only because it was ratified by the Knesset and became a binding international agreement, but as a result of the provisions of the Implementation Law and the Legal Assistance Law, which incorporate the provisions of the said agreement into Israeli domestic law. 40. Furthermore, Israel, through its military commanders in the West Bank and Gaza Strip, enacted military legislation intended to implement the Interim Agreement in the West Bank and Gaza Strip. To accomplish this, the military commanders issued proclamations in these areas. The IDF commander in the West Bank signed, on November 23, 1995, the Proclamation Relating to Implementation of the Interim Agreement (Judea and Samaria) (No. 7), 5756 – 1995, and the IDF commander in the Gaza Strip signed, on December 26, 1995, the Proclamation Relating to Implementation of the Interim Agreement (Gaza Strip) (No. 5), 5756 – 1995. These two proclamations incorporated the provisions of the Interim Agreement and applied the provisions of the agreements to the occupied territories for all intents and purposes.
A photocopy of the Declaration of Principles is attached hereto as Appendix A. A photocopy of the Interim Agreement is attached hereto as Appendix B. A photocopy of Article I, Criminal Jurisdiction, of Annex IV (Protocol Concerning Legal Matters) of the Interim Agreement, is attached hereto as Appendix C.
A photocopy
of Article II, Legal Assistance in Criminal Matters, of Annex IV
(Protocol Concerning Legal Matters) of the Interim Agreement, is
attached hereto as Appendix D. A photocopy of the Legal Assistance Law is attached hereto as Appendix F.
A photocopy
of the proclamation that was published regarding the West Bank
is attached hereto as Appendix G. The two parties agree that the outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period. The Palestinian Council, its territorial jurisdiction, and the transfer of powers:
42. The Respondent will argue that, commencing on the day of the signing of the Declaration, Israel was not left with any jurisdiction in the West Bank and Gaza Strip, for those areas (except for the exceptions expressly set forth in the Interim Agreement) became the sole and exclusive jurisdiction of the Palestinian Council. It should be emphasized that a basic foundation of the agreement is that the jurisdiction of the Council covers all areas of the West Bank and Gaza Strip, except for the exceptions that were defined as subjects for discussion in the framework of the permanent-status negotiations, as Article IV of the Declaration explicitly states: Jurisdiction Jurisdiction of the Council will cover West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations. The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period. 43. In the Interim Agreement, the parties repeated and set forth the territorial and functional jurisdiction of the Council during the interim period: it included the whole area, except for certain exceptions, and encompassed all the legislative and judicial jurisdiction. Thus, Chapter 3 of the Interim Agreement, which discusses legal affairs, states, in Article XVII, the Council’s jurisdiction, as follows: Jurisdiction In accordance with the DOP [the Declaration], the jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for: a. issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis; and b. powers and responsibilities not transferred to the Council.
44. Thus, the jurisdiction of the Palestinian Council included the entire area of the West Bank, except for the exceptions expressly stated in the agreement. The Respondent will argue that, whereas he is a resident of Ramallah, and whereas he was arrested in that city, which was in the territorial jurisdiction the Palestinian Authority, he was subject to the laws and jurisdiction of the Palestinian Authority. The Respondent will argue that, at the time that Israel entered the territory of the Palestinian Authority, it breached the Interim Agreement, contravening its provisions and principles, and that Israel abducted him from the city in which he lived after it unlawfully entered the Palestinian Authority’s territory. 45. The Respondent will argue that the Council’s jurisdiction and legal powers were established in detail in the Interim Agreement, that it is the sovereign in its area of jurisdiction, and is the sole entity that has the right to prosecute its residents for offenses commented in its territory. 46. The Respondent will further argue that the West Bank and Gaza Strip territory was occupied territory administered by the military government and the civil administration established by the army; however, upon the signing of the agreements, the legislative and judicial jurisdiction and powers over residents of the occupied areas, which had been the responsibility of the military government and the Civil Administration, were transferred to the Council, as provided in Article I of the Interim Agreement, which states: Transfer of Authority
1. Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military government and its Civil Administration to the Council in accordance with this Agreement. Israel shall continue to exercise powers and responsibilities not so transferred. 47. Indeed, the two IDF commanders in the West Bank and the Gaza Strip transferred, by means of the two proclamations, the said powers to the Palestinian Council, and Israel and its forces in the area transferred these powers to the Palestinian Council. In doing so, the principal was accepted whereby the powers and responsibilities were transferred to the new sovereign, i.e., the Council, except where otherwise stated in the Interim Agreement. It should be emphasized that the Interim Agreement and the proclamations issued pursuant thereto, delineate the powers transferred to the Council, and they include all powers of the sovereign except for the specific exceptions. 48. Chapter 3, Article XVII of the Interim Agreement, mentioned above, which discusses legal affairs, expressly states that the Council has territorial jurisdiction over the entire territory. This article states that the functional jurisdiction of the Council covers the entire territory, and all persons, except for Israelis. The article provides as follows: Accordingly, the authority of the Council encompasses all matters that fall within its territorial, functional and personal jurisdiction, as follows: a. The territorial jurisdiction of the Council shall encompass Gaza Strip territory… and West Bank territory… b. The functional jurisdiction of the Council extends to all powers and responsibilities transferred to the Council, as specified in this Agreement or in any future agreements that may be reached between the Parties during the interim period. c. The territorial and functional jurisdiction of the Council will apply to all persons, except for Israelis, unless otherwise provided in this Agreement. 49. The powers transferred to the Council in the territory include the legislative, executive, and judicial powers, pursuant to Article III (2) of the Interim Agreement: … The Council shall carry out and be responsible for all the legislative and executive powers and responsibilities transferred to it under this Agreement…
Article XVII (4)(a) of the Interim Agreement provides: Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the Council, powers and responsibilities not transferred to the Council and Israelis. 50. Israel thus transferred to the Council all the legislative and judicial powers relating to all persons located within its domain, except for the exceptions mentioned above relating to territory and persons, and the matters stated in Article XVII (4)(a) above, which primarily relate to Israelis. 51. The Respondent will argue that, although interim agreements are involved, the establishment of the Council, the transfer of powers to it, and the Council’s control in the territory transferred to it pursuant to the agreements create a new sovereign; Israel and the commanders in the region no longer have the powers that they previously had as the occupier of these territories. From a legal perspective, based on international law as well as on the spirit of the Interim Agreement and the intention of the parties, after Israel handed over control of these territories and following the IDF’s withdrawal from them, a new sovereign controls the territory agreed upon by the parties. This new sovereign has the powers and responsibilities over the persons and daily matters in the said territory. 52. In light of this legal situation, offenses committed in the jurisdictional area of the Palestinian Council should be considered an external offense in accordance with its definition in sections 5-13 of the Penal Law, 5737 – 1977. 53. The Respondent will argue that the said agreements, implementation laws, and proclamations should be construed solely on the basis of this legal situation. As a result, any attempt and act that seeks to prejudice the powers of the new sovereign that was established as a result of the agreements must be rejected. In light of this, any contention claiming Israeli jurisdiction, civilian or military, must be rejected if it ignores the existence of this sovereign. Similarly, the military legislation enacted by the military commanders in the region that is intended to impede and reduce the legislative power of the Palestinian sovereign in West Bank and Gaza Strip territory must similarly be rejected.
Criminal jurisdiction pursuant to the Interim Agreement: 54. The appendixes and protocols of the Interim Agreement set forth the scope of the Council’s powers in each area. In the present matter, we shall relate to the criminal jurisdiction that was transferred to the Council, in accordance with Annex IV, Protocol Concerning Legal Matters (hereinafter: “the Legal Annex”). This protocol states the legal arrangements between the parties, as set forth in Article 6 of the Interim Agreement. 55. In the Legal Annex, the parties determined the personal offenses within the jurisdiction of the Authority, and the Respondent will argue that Israel transferred sole jurisdiction to the Council, the local courts, and the local prosecution authorities. 56. Article I (1)(a) of the Legal Annex, which discusses criminal jurisdiction, states as follows: The criminal jurisdiction of the Council covers all offenses committed by Palestinians and/or non-Israelis in the Territory, subject to the provisions of this Article. For the purposes of this Annex, “Territory” means West Bank territory except for Area C… 57. Thus, the criminal jurisdiction of the Council applies to all the territory except for certain exceptions; consequently, the State of Israel is left with no jurisdiction over Palestinians living in the territory of the Palestinian Authority, subject to the exceptions stated in the Interim Agreement. These exceptions are: a. Area C, as to which the jurisdiction will be gradually transferred to the Council. b. Israeli settlements and military locations. 58. Furthermore, the Council was given jurisdiction over Palestinians living outside the territory who committed offenses against Palestinians, provided that the offense is unrelated to Israel’s security interests. In this regard, Article I(1)(b) of the Legal Annex states: In addition, the Council has criminal jurisdiction over Palestinians and their visitors who have committed offenses against Palestinians or their visitors in the West Bank and the Gaza Strip in areas outside the Territory, provided that the offense is not related to Israel’s security interests.
59. Thus, according to Article I(1)(a) and 1(b) of the Legal Annex, the Council is given exclusive criminal jurisdiction over all offenses committed in the territory as defined in the Legal Annex, except for the exceptions referred to above. In addition, the two said clauses also granted the Council criminal jurisdiction over offenses committed outside the territory that are committed by Palestinians, provided that the offenses are not related to Israel’s security interests. Therefore, an offense that a Palestinian commits in the territory, even if related to Israel’ security interests, also comes within the exclusive criminal jurisdiction of the Palestinian Council. 60. What jurisdiction, then, does Israel retain relating to offenses committed within the occupied territories or to offenses committed by Palestinians residing in the occupied territories? Article I(1)(c) of the Legal Annex states the limitations on the comprehensive criminal jurisdiction of the Council as regards Area B, in accordance with the provisions of Article I(2) of the Legal Annex, which grants Israel sole criminal jurisdiction. Article 1(2) provides as follows: Israel has sole criminal jurisdiction over the following offenses: a. offenses committed outside the Territory, except for the offenses detailed in subparagraph 1.b above; and b. offenses committed in the Territory by Israelis. 61. Proper implementation of the aforesaid provisions in the Interim Agreement dictates that the Respondent is subject to the sole criminal jurisdiction of the Palestinian Authority, insofar as he is a resident of the territory as defined in the Interim Agreement, being a resident of Ramallah, which, according to the Interim Agreement, is part of Area A. The Respondent was physically present, and the location in which the offenses for which he is charged was situated, in the territory under the sole control of the Council that was established pursuant to the said agreements, and the Interim Agreement does not grant Israel any criminal jurisdiction over any act or omission of the Respondent. 62. Based on the aforesaid, bringing the Respondent to Israel and prosecuting him contravenes the agreements to which Israel is party and which remain in effect. Law applying to Palestinians who committed offenses subject to Israeli criminal jurisdiction pursuant to the Interim Agreement: 63. The Respondent will argue that Israel violated international law when it abducted him and transferred him to Israeli territory. Argument on this issue will be presented separately and in detail hereinbelow in this brief. In addition, the Respondent will argue that the abduction contravenes the Interim Agreement and that Israel is holding him illegally and in breach of the said agreement. The Interim Agreement does not grant Israel any right to arrest and prosecute Palestinians, even if they committed offenses that ostensibly came automatically within Israel’s criminal jurisdiction. Surely, Israel does not have the right to abduct the Respondent, which it did, and prosecute him in violation of the agreement to which it is party.
64. Article I(1)(4) of the Legal Annex is intended to arrange this matter; it provides as follows: In addition, and without derogating from the territorial jurisdiction of the Council, Israel has the power to arrest and to keep in custody individuals suspected of having committed offenses which fall within Israeli criminal jurisdiction as noted in paragraphs 1.c, 2 and 7 of this Article, who are present in the areas under the security responsibility of the Council, where: a. The individual is an Israeli, in accordance with Article II of this Annex; or b. (1) The individual is a non-Israeli suspected o having just committed an offense in a place where Israeli authorities exercise their security functions in accordance with Annex I, and is arrested in the vicinity in which the offense was committed. The arrest shall be with a view to transferring the suspect, together with all the evidence, to the Palestinian Police at the earliest opportunity. (2) In the event that such an individual is suspected of having committed an offense against Israel or Israelis, and there is a need for further legal proceedings with respect to that individual, Israel may retain him or her in custody, and the question of the appropriate forum for prosecuting such a suspect shall be dealt with by the Legal Committee on a case by case basis. Thus, according to the Interim Agreement, because the express conditions set forth in the above quoted clause were not met, Israel was prevented from arresting and holding the Respondent, and certainly was not allowed to bring him to trial. 65. According to the Interim Agreement, Israel has criminal jurisdiction and is allowed to arrest a suspect only in two situations. One, when the suspect is an Israeli, and two, when the suspect is a Palestinian who had just committed an offense. The jurisdiction arising in the second situation is referred to as “hot-pursuit jurisdiction,” and is limited by the express limitations set forth in Article I(4)(b)(1) of the Legal Annex, whereby, to paraphrase the limitations:
a. The suspect committed an offense in a place where Israeli authorities exercise their security functions, and the Israeli forces chase the suspect and arrest him in the vicinity in which the offense was committed. b. The said security functions are performed in accordance with Annex I. 66. In the present case, all the conditions required to sustain Israeli criminal jurisdiction are not met. First, the IDF forces arrested the Respondent in breach of the Interim Agreement. The Respondent was arrested when the IDF invaded and reoccupied the West Bank, including Ramallah, in the operation referred to as Defensive Shield. The reoccupation of the territory is an act of war that violates the Interim Agreement. Israel committed acts that violate provisions of the Interim Agreement and are inconsistent with the actions permitted it by Annex I, as referred to in Article I(4)(b)(1) of the Legal Annex. 67. Thus, the presence of soldiers in Ramallah and the actions taken in the West Bank in the context of the said operation were forbidden, and certainly could not legitimate the arrest of the Respondent. Second, at the time of his arrest, the Respondent had not committed an act in the vicinity. Consequently, the conditions for hot pursuit were not met, and the arrest of the Respondent was made in contravention of the Interim Agreement. Post-arrest handling of Palestinians arrested by IDF forces in territory of the Palestinian Authority, as provided in the Interim Agreement: 68. The Respondent will argue that, in addition to his abduction being clearly illegal, Israel violated the law when it breached the provisions of Article I (4)(b)(1) of the Legal Annex. According to this provision, Israel was allowed to arrest the Respondent only for the following purpose: The arrest shall be with a view to transferring the suspect, together with all evidence, to the Palestinian Police s the earliest opportunity. That is, when Israel arrested the Respondent, Israel was required to transfer him immediately to the Palestinian Police, and it did not have the authority to arrest him and then transfer him to its territory, as it did. 69. Article II of the Legal Annex deals with legal assistance in criminal matters. It states the specific rules relating to extradition, transfer, and questioning of suspected offenders. Article II(7) arranges the transfer of suspects and defendants. The Respondent will argue that Israel clearly breached the provisions of subsections (7)(g), (7 )(h)(1), and (7)(h)(2), which provide as follows:
g. No person shall be transferred in respect of an offense punishable by capital punishment unless the requesting side undertakes that capital punishment shall not be imposed in the case. h. (1) Both sides shall take all necessary measures to ensure that the treatment of the individuals transferred under this article complies with the applicable legal arrangements in Israel and in the territory and with internally-accepted norms of human rights regarding criminal investigations. (2) Suspects transferred under this paragraph shall have the right to be assisted during the investigation period by an advocate of their own choice. 70. The Respondent will argue that he was brought before the military court and was suspected of offenses that, according to the military legislation, carry a death penalty, in violation of the Interim Agreement. 71. The Respondent will argue that Article II (7)(h)(1), quoted above, incorporates the relevant provisions of international law. Whereas international law prohibits the transfer of residents of occupied territory to the territory of the occupying state, the abduction and transfer of the Respondent contravenes the Interim Agreement and international law, as will be explained in detail below. 72. As stated above, when the Respondent was arrested, he was not allowed to exercise his right to consult with an attorney who would represent him in the arrest proceedings, in violation of the provisions of Article II(7)(h)(2) of the Legal Annex, quoted above. 73. Pursuant to Article II (4)(b)(2) of the Legal Annex, if Israel seeks to prosecute a Palestinian in its courts, it must present the matter to the Legal Committee, which has the authority to determine the proper tribunal to hear the case. Israel, therefore, does not have the authority to decide unilaterally to prosecute the individual in an Israeli court. 74. Therefore, every act that Israel took in arresting the Respondent and prosecuting him in this court contravenes the Interim Agreement. This conclusion is clear from the following facts: a. The Palestinian Council has sole criminal jurisdiction; b. The entry, occupation, and IDF actions in Ramallah during Operation Defensive Shield contravene the Interim Agreement and the law; c. The Respondent was not arrested in hot pursuit; d. After his arrest, the Respondent was held in Israel and was not transferred to the Palestinian Authority, in breach of the Interim Agreement and of international law; e. The Respondent was prosecuted in Israel, although the Palestinian Council has sole criminal jurisdiction; f. If doubt existed, Israel should have referred the matter to the Legal Committee to determine the appropriate forum for prosecution of the Respondent, and Israel had no authority to prosecute him in the State of Israel;
g. The Respondent was prosecuted for penal offenses for which the penalty is death, in contravention of the Interim Agreement; h. The Respondent was not allowed to consult with an attorney after his arrest or to receive appropriate representation, in contravention of the Interim Agreement.
Criminal
jurisdiction and authority to make arrests as provided in the
laws enacted by the Knesset implementing the Interim Agreement: 76. These laws, which were intended to conform Israeli law to the provisions of the Interim Agreement, emphasize the lack of the State of Israel’s criminal jurisdiction to prosecute the Respondent in a court in Israel. The provision of jurisdiction in the Implementation Law is set forth in Section 2 of the Extension Law, which states as follows: Chapter 2: Jurisdiction 2. Court jurisdiction [Amendment: 5725 [1975], 5742 [1982], 5748 [1988], 5754 (3) [1994, 5756 [1996]] (a) In addition to the provisions of any law, the court in Israel shall be competent to adjudicate upon, pursuant to Israeli law, a person located in Israel for his act or omission that took place in the region, and an Israeli for his act or omission that took place in the territory of the Palestinian Council, all in the event that the act or omission was an offense had it taken place within the jurisdiction of the courts in Israel; (b) The provisions of law applying in Israel relating to offenses where trial is optional and to administrative offenses will apply also to said offenses that were committed by an Israeli in the region or in the territory of the Palestinian Council, which, had they been committed in Israel, would have constituted the offenses as stated.
(c) This rule does not apply to a non-Israeli who, at the time of the act or omission, was a resident of the region or a resident of the territory of the Palestinian Council; 77. Subsection (c) above clearly states that the statute revoked the jurisdiction of Israeli courts to adjudicate in matters of Palestinians if the individual was, at the time of commission of the offense, “a non-Israel who… was a resident of the region or a resident of territory of the Palestinian Council.” 78. Therefore, the Respondent will argue that the State of Israel does not have the right to prosecute him in Israel. The Proclamation Relating to Implementation of the Interim Agreement (Judea and Samaria) (No. 7), 1995: 79. The commanders of IDF forces in the West Bank and in the Gaza Strip also acted to implement the agreements. They issued proclamations in the form of military orders, which established, inter alia, the jurisdiction of the military courts to try residents of the region, as distinguished from prosecuting them in courts in Israel. 80. The commanding officer of the West Bank issued the said proclamation, which was published on September 28, 1995. The proclamation establishes the scope of the criminal jurisdiction and, provides, in Section 4, for the transfer of jurisdiction of the military government to the Palestinian Council: a. The commander of IDF forces in the region and the head of the Civil Administration will transfer powers to the Council and its agencies… including legislative, judicial, and administrative powers, all as set forth in the Interim Agreement and subject to its provisions. 81. As is clearly stated, the proclamation is subject to the provisions of the Interim Agreement, and it, must, therefore, meet its requirements and conform to its provisions. The proclamation, which incorporates all the provisions of the Interim Agreement, including the restrictions on arrest and prosecution, made the criminal jurisdiction provisions of the Interim Agreement part of the security legislation of the military government in the West Bank. 82. Section 6 of the proclamation states that the judicial powers of the military government apply to:
a. the settlements and military sites; b. Area C; c. Israelis; d. External security of the region, security and public order of the settlements, the military sites, and Israelis; e. Security and public order in places located under the security responsibility of Israel; f. Powers that were not transferred to the Council. 83. The above indicates that the military courts also do not have authority to try a Palestinian who committed an offense in the territory of the Palestinian Authority. However, on September 25, 1997, an attempt was made to arrange such authority by means of Order No. 1455. This order professed to grant the military court in the region the power to try Palestinians who committed an offense in Area A. The amendment states: d. The military court is authorized to try as aforesaid in subsection (a) also a person who committed an offense in Area A that harmed or was intended to harm the security of the region. 84. The Respondent will argue tangentially that this amendment is inconsistent with the purpose of the proclamation that incorporates the Interim Agreement and is supposed to implement its provisions. This amendment is contrary to the interim agreements in that it erodes the sole jurisdiction given to the Council.
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