The Palestine-Israel Journal is a quarterly of MIDDLE EAST PUBLICATIONS, a registered non-profit organization (No. 58-023862-4).
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Editorial Board

Hisham Awartani

Danny Rubinstein

Sam'an Khoury

Boaz Evron

Walid Salem

Ari Rath

Zahra Khalidi

Daniel Bar-Tal

Ammar AbuZayyad

Galit Hasan-Rokem

Khaled Abu Aker

Galia Golan

Nazmi Ju'beh

Gershon Baskin

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Simcha Bahiri

Nadia Naser-Najjab

Dan Jacobson

Jumana Jaouni

Dan Leon

Anat Cygielman

Khuloud Khayyat Dajani

Izhak Schnell



Date:2013-08-01 /

General

Criminal Justice in the Occupied Territories

     by Saundra Lambertsen

“The Truth Is Rarely Pure and Never Simple”-- Oscar Wilde

The Israeli security apparatus can be viewed, at a glance, through the prism of threat potential versus threat management and of weighing unintended consequences based on politically charged government policies for law enforcement. The complexities range from jurisdiction through Military Orders within Military Tribunals versus Civilian Courts to implementation of Martial Law under Israeli occupation. If Israeli authorities would delineate the prison population - petty criminals, hardened criminals, terrorists and political prisoners—then much of the needed reform effort would follow logical patterns of jurisdiction while maintaining security efforts that represent the best interests of all people.

A distinction must be drawn between legal statute and legal system. Additionally, a thorough review of domestic law in comparison to international law would aide in protecting Israeli sovereignty concerns related to the International Criminal Court (ICC) and its implications for Israeli security. Regardless of jurisdiction, there is no question that human rights - decorum, respect, civility, in conjunction with due process by following the letter of the law – should be paramount to the justice system. The Israeli court system up to the Supreme Court level allows access for anyone who wishes to file grievances against the system itself. Further, there is a court of appeal process and Arab representation at the Supreme Court level as well.

Reform may now be possible

With peace talks agreed to by Israel and Palestine for the coming nine months, and with the conciliatory gesture by Israel to release upwards of 104 veteran Palestinian prisoners, reform may be possible. In the meantime, serious consideration should be given to current legal statutes with a focus on legislative reform measures through the parliamentary system which is a key position of authority, lead by Prime Minister Netanyahu, considering his position of influence among Israeli Parliament members. The Israeli Prison Service (IPS) can champion similar reforms in the prison system itself. The IPS, according to its mission statement, “is a security organization which is an integral part of Israel’s system of law enforcement.” Its chief roles include the holding of prisoners and detainees under secure and suitable conditions, while preserving their dignity, and meeting their basic needs. The IPS coordinates with relevant national, regional and municipal authorities and organizations.1 Significant reform is needed through a change in procedures and transparency if the IPS intends to fulfill its stated mission.

It is not about prisoner releases, it is about the system. The case in point is if the Security Barrier and Iron Dome apparatus have alleviated violence, then why is there the need for ongoing crackdowns and roundups at a petty level? Since there is little apparent benefit from the current system, reforms would be a good first step in addition to the release of pre-Oslo Accords veteran prisoners. The release of 104 political prisoners does not fix the system but it may be a step in the right direction towards efforts at peace negotiations in good faith. However, arresting a similar number of new Palestinians routinely threatens progress towards successful negotiations.

Equal voice to Palestinian and Israeli priorities

Equal voice needs to be given to both Palestinian Authority priorities-- Palestinian Statehood, settlement encroachment, check points, civil and human rights-- and Israeli priorities of an acknowledged Jewish State: demography, domestic, and Pan-Arab regional security. Israeli military checkpoints represent martial law. Additionally, settlers are rarely questioned, much less arrested or prosecuted for comparable violations within the critical axis points of confrontation. This disparity in the criminal justice system cannot go unchecked. The biased approach to law enforcement must shift back to where equality and justice reside. Realizing the routine violators have little effect and may even be completely unrelated to the criminal justice system, settlements contribute to the disillusionment and helplessness with the Palestinians’ perception of equal treatment under law.

Case studies provide insight into the diversity of legal issues managed by the Israeli criminal justice system on a daily basis. The Israeli Supreme Court occasionally strikes down certain acts: for example, not all sections of the expansive security barrier have been ruled legal. Currently, there are two arguments on the Supreme Court docket, awaiting a final decision on military service exemptions for Ultra Orthodox Jews as well as code restrictions for ongoing commercial retail development that the community may oppose dependent on hours of operation in the final judgment. The Supreme Court hears from all sides. Of interest to Palestinians is the argument against the Bedouin community and its civil and human rights, territorially speaking. While each of these cases deserves due process and headline grabbing attention, it is the seemingly trivial moves by the people who operate criminal justice at the local community level, insisting to arrest and imprison an East Jerusalem bagel vendor for 17 days, citing unpaid fine violations. Not to be forgotten in recent news is the five year old Palestinian boy detained in Hebron for alleged stone throwing.

Addemeer – Prisoners Support and Human Rights Association

Numerous internationally recognized human rights organizations whose mission is prisoner advocacy highlight the plight of those arrested, including administrative detainees, human rights defenders, Palestinian Legislative Council members, children and women, and not to be forgotten veteran political prisoners. Many advocacy groups like Addemeer - Prisoners Support and Human Rights Association, also provide legal aid to those prisoners who would otherwise be unrepresented during their military tribunals.2

The time has come for a greater emphasis on reconciliation

A reasonable approach to justice could be to start with smaller, more manageable reforms, reforms that follow logical jurisdiction mandates. Prime Minister Netanyahu could advance system reforms at the domestic/civil levels rather than the security level, alleviating the need for military interventions from the Israeli security forces, paving the way for a retrofitted criminal justice system for domestic crimes rather than a military justice system that should be focused on crimes of terrorism and legitimate threats to national security. On the other hand, many Palestinians, engaged in the peace process with a vested interest in a solution other than status quo, often use the politically charged term, apartheid. Reconciliation or retribution, which approach is the most valuable measure of peaceful coexistence? Time has come for a greater emphasis on reconciliation.



1 State of Israel Ministry of Public Security - http://mops.gov.il
2 Addameer – Prisoner Support and Human Rights Association – www.addameer.org








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