Usama Halabi, a lawyer, works with the East Jerusalem Quaker Legal Aid Program and is the author of The Druze in Israel: From Sect to Nation (Jerusalem: Golan Academic Association, 1989) [Arabic]. Barbara Harlow interviewed him in Jerusalem in December 1994.
In November, the Israeli military court in Jenin issued a death sentence for a Hamas leader, the first time such a sentence has been issued by a military court in the Occupied Territories. Does this signal a change in policy?
No. The circumstances surrounding this case — two attacks inside of Israel for which Hamas claimed responsibility — were the reasons behind the judges issuing such a sentence. The prosecutor in this case did not ask for a death sentence. The head military prosecutor [for the West Bank], in a radio interview, made it very clear there had not been nor would there be any change in policy in terms of introducing the death sentence to people prosecuted through the military courts. Yitzhak Rabin himself said that the judges’ decision was a poor one.
Who is being arrested by the Israeli authorities these days?
Most of the people being arrested and tried are members of Hamas, PFLP and DFLP [Popular and Democratic Fronts] — groups opposed to the peace process. The instructions that the military prosecutor’s office follows are that there are to be no plea bargaining agreements for less than one year in prison for charges of membership in these factions. It used to be that membership alone brought a charge of two or three months.
A military judge told me that there is no real interest in arresting Fatah people these days, but there is real pressure to arrest people from Hamas and give them the highest punishments possible.
What kinds of changes have taken place in the military courts since September 1993?
Many lawyers who worked in the military courts now hesitate to do so. Recently, the Quakers couldn’t find a single lawyer willing to take a case to the military courts! Some [Jewish Israeli] lawyers feel they have done enough. Others, Palestinian citizens of Israel, are leaving their practices in the territories and going back to the Galilee to practice. And many Palestinian lawyers from the territories are looking for other kinds of work.
Some top leaders in the Palestinian Authority have reputations for corruption and weak records of commitment to the rule of law. How is the legal community dealing with Palestinian abuses of authority in Gaza and Jericho?
One point needs to be clarified. Gaza and Jericho don’t have the same laws. This complicates both the consolidation of the Palestinian Authority and people’s ability to monitor the exercise of authority. For example, the head judge in Gaza issued a statement that courts in Gaza should make decisions based on Jordanian law, but Jordanian law doesn’t apply in Gaza! How will the substance of legal matters be discussed and decided when there is not even a basic understanding about what laws apply where?
There are British laws in both areas, Jordanian laws in the West Bank, Egyptian laws in Gaza, different Israeli military order in both regions, Israeli domestic laws for East Jerusalem. Furthermore, Palestinian leaders from outside have brought with them a criminal code applicable in Lebanon. It is a mess and no one has the authority to take any decisions to clarify matters. According to the Oslo agreement, Israeli military orders will remain in place until they are reviewed and canceled or replaced — in agreement with the Israelis. Everything pertaining to the legal order is subject to the Israelis who have veto power.
Lawyers don’t know exactly what laws or what courts are functioning. In the past, whenever lawyers had a problem with the Israeli authorities, their option was clear, even if it didn’t bring the desired results. Nowadays, there are four separate regions with four separate places to apply concerning legal matters.
When lawyers want to deal with legal issues, like family reunification or travel permits or house demolitions, there is no longer any clear answer as to who handles such matters. If the client is from Jericho, the lawyer must figure out what is going on legally in Jericho these days. If he is from East Jerusalem, an entirely different situation prevails. And so on.
I will give an example. Now that the West Bank is closed off from Israel, including East Jerusalem, if one of my clients is due to appear at a court or to come to Jerusalem for a meeting, I must write to my client in Arabic and in Hebrew, and he will take the letter to try to get permission from one Palestinian office and one Israeli office. It takes at least ten days to get a permit out of Jericho!
How do you see the legal resources of the Palestinian self-governing authority in relation to the political forces?
There are two factions in the legal profession these days: independent practitioners and those who have been incorporated into the Palestinian Authority. Minister of Justice Furayh Abu Middayn cannot do anything without permission from Yasser Arafat. There is no elected council. There are no clear job descriptions and no clear delineation of authority and responsibility. The relationships among the three branches of the PA — the executive, legislative and judicial — are vague. At present, it is possible that the three are really only one.
Early on there were allegations that the Palestinian police had learned well from their Israeli predecessors in terms of interrogation practices.
According to Hanan Ashrawi, there are presently no political prisoners being held by the PA. Other reports say that there are no longer any problems with cruel and unusual punishment or torture during interrogation. I have read in the Israeli press and heard from people in Jericho that people have been tortured in Palestinian prisons. I don’t know with any certainty if the problems of torture and abuses that were reported by groups including al-Haq [a Palestinian human rights organization] have stopped.
Those problems of torture that were reported, including the case of one death in detention, were against alleged collaborators. I am not implying that collaborators don’t deserve protection from abuses by the state authority. But the fact is that after such a long struggle against the occupation, there is very deep resentment against collaborators. This will invite problems in their treatment as long as there is not a strong means of oversight of the government’s exercise of authority in prisons and detention centers. We must say clearly and without exception that such conduct is unacceptable and should never be carried out, against collaborators or anyone else.
What steps are Palestinians taking to develop a legal framework?
There are a number of projects going on. There is a legal research center at Birzeit [University]. There is a committee preparing the groundwork for elections. There is a committee that is reviewing the military orders.
What will be the relationship between the military orders and the new legal apparatuses and legislative changes?
The goal is to cancel those orders and replace them with Palestinian laws. Hopefully, these new laws will be enacted by a freely elected council. This is essential. At present, the only governing organ for which the Oslo agreement has provided complete independence is the courts.