THE LEGAL STATUS OF
THE WEST BANK AND GAZA
Prepared for, and under the guidance of
the Committee on the Exercise of the Inalienable
Rights of the Palestinian People
New York, 1982
THE EFFECTS OF THE 1967 WAR ON THE STATUS OF THE WEST BANK AND GAZA
CHANGES IN GOVERNMENTAL SYSTEM IN THE OCCUPIED TERRITORIES
CHANGES IN JORDANIAN LAW MADE BY ISRAEL
This study deals with two parcels of territory that form an integral part of Palestine and which were occupied by Israel in 1967.
The Gaza Strip is an area of roughly 600 square miles with 400,000 inhabitants. The West Bank has an extension of 2,270 square miles and is very rich in agricultural resources. Its population amounts to 700,000 inhabitants.
The Gaza Strip was administered in 1967 by Egypt and the West Bank was then united with Jordan, following the adoption of the Act of Unity in 1950. When war broke out between Israel and the Arab States, both territories were occupied by the Israeli army. Now, several years later and notwithstanding numerous United Nations General Assembly resolutions demanding the "withdrawal from all territories occupied", Israel, disregarding these resolutions, remains in occupation of these territories.
I. HISTORICAL BACKGROUND
After the defeat of the Ottomans on 30 October 1918 towards the end of the First World War, Palestine, which for 400 years had been part of the Ottoman empire, came under British control.
In 1919, it was agreed that Palestine would become part of the new League of Nations Mandate system, and in 1920, the United Kingdom was named Mandatory Power of the Palestinian Mandate.
A paper published by the Royal Institute of International Affairs 1/ describes Palestine as follows:
Under the terms of article 25 of the Mandate, Transjordan was included in the Mandated territory of Palestine, but by virtue of a saving clause in the Article and with the approval of the League of Nations, it was administered separately from September 1922 and became independent as the Kingdom of Transjordan in March 1946. The British Mandate lasted until 1947 when the United Kingdom voluntarily surrendered its authority to the United Nations.
Article 22 of the Covenant of the League of Nations outlined the mandate system. The territories subjected to mandates were divided into three categories (A, B and C) in accordance with the particular stage of readiness to exist as an independent nation. Palestine was considered an "A" Mandate territory and was in no manner excluded from the provisions of the Covenant. 2/
In 1947 the General Assembly voted in favour of the Palestine Partition Plan as recommended by the United Nations Special Committee in Palestine. Resolution 181 (II) states in part:
The Arabs rejected the partition on the grounds that it violated the provisions of the United Nations Charter which gives a people the right to decide its own destiny. Partition was effective by 1 August 1948 after the evacuation of the British armed forces on 14 May 1948.
In 1949 Armistice Agreements between Israel and Egypt, Lebanon, Transjordan and Syria that followed the 1948 war meant territorial changes in Palestine. Israel secured control of all the territory allotted them in the Partition Plan and gained substantial additional portions in the West Bank area. The Gaza Strip was held by Egypt and the West Bank was united with Transjordan with no prejudice to the final settlement of its just cause within the framework of national aspirations.
II. PALESTINIAN SOVEREIGNTY
The question of sovereignty over Palestine is examined by international lawyers from different points of view.
Going back historically to the period of the Palestinian mandate the main views are the following:
(a) Sovereignty was transferred to the Mandatory Power subject to the provisions of the Mandate;
(b) It was entrusted to the League of Nations;
(c) It remained suspended during the Mandate subjected to future settlement;
(d) It remained in the inhabitants of the mandated territories.
In connexion with the first opinion, in 1917 the British army occupied Palestine following virtual Turkish abandonment of the area. Turkey did not legally surrender its sovereignty until 1923 when the Treaty of Lausanne was signed. Such detachment was primarily de facto and was a consequence of the British military occupation of Palestine and became de jure in 1923. The British military occupation did not bestow sovereignty to the United Kingdom, furthermore the military occupation did not affect any claim to sovereignty of the inhabitants.
The second view, maintaining that the League of Nations retained the sovereignty over these territories, lacks validity, for the Council of the League of Nations never claimed sovereignty for itself, nor conveyed any to the United Nations when its existence terminated. It was suggested that the League had "ultimate responsibility". Various provisions of the Covenant of the League of Nations conferred on the League of Nations the responsibility of exercising constant supervision and control over the Mandatory Power. But "ultimate responsibility" cannot be regarded as synonymous with retention of title. 4/
The third opinion does not defeat the objective of the Council of the League of Nations, which was self-government for the area. If this proposition is to be accepted it can be assumed that it was subsequently transferred to the United Nations.
The fourth argument, asserting that sovereignty may have rested with the native inhabitants of the territories, is based on the fact that the primary objective of the mandate system was to prepare the territories for self-government and on the Council's recognition of this area as an "A" mandate (prepared for provisional recognition). The legal effect under international law of Article 22 of the Covenant of the League of Nations was to make of this territory a State in which was vested legal sovereignty over Palestine.
Professor Henry Cattan maintains:
In his view the legal status of Palestine during the British mandate was as follows: 6/
The Palestinians have not lost their sovereignty over Palestine merely because the neighbouring Arab States did not accept the Partition Plan. They have been deprived of its exercise, as it was the case of the Poles between 1795 and 1919 when their country was partitioned and annexed by other States, or the Ethiopians when their country was occupied by Italy in 1936.
In 1948 following the United Nations partition resolution, the Arab Higher Committee on behalf of the Arab inhabitants of Palestine requested the International Court of Justice to adjudicate the issue of legal title to Palestine. Israel refused to submit the case to the court's jurisdiction.
Incidents such as that of the massacre of Arabs in the village of Dar Yassin, which had taken place in April 1948, had spurred an exodus of refugees. Neighbouring Arab States sent troops into Palestine, stating they were acting "… for the sole purpose of restoring peace and security and establishing law and order in Palestine."
Jordan assumed responsibility for the West Bank, according to the terms of the act of unity until such time as the "Palestinian problem" might be solved.
According to a reply received from the Government of the United Arab Republic contained in the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories:
In April 1950 a general election was held to choose a new Jordanian Parliament with equal representation from the East and West Banks. Both houses of the Parliament meeting in Amman on 24 April 1950 adopted a resolution formally uniting the Hashemite Kingdom of the Jordan and those areas of Arab Palestine where the Arab legion had entered during the war with Israel and which had remained under Jordanian control since the armistice between Israel and Jordan. The resolution provides:
In this connexion, King Hussein of Jordan expressed the following at the General Assembly in 1979:
He further affirmed:
III. ISRAELI OCCUPATION
During the 1967 war Israel seized the remainder of Palestine. Israel's occupation meant that 1,100,000 Palestinians in the West Bank and Gaza were brought under Israeli domination.
In accordance with the doctrine of international law, the principle of "inadmissibility of the acquisition of territory by war" goes beyond the rule "no fruits of aggression". 9/ The application does not depend on determining who was the aggressor in 1967, which is a difficult question to answer. There is no doubt that whether or not Israel was the aggressor, its occupation of territory was achieved by the use of armed force.
This principle was internationally accepted as a rule of American international law by most of the members of the Pan American Conference of 1890, reaffirmed in the Buenos Aires Declaration of 1936, the Lima Declaration of 1938 and the Bogota Charter of the Organization of American States of 1948. It was assumed in President Wilson's Fourteen points and generally applied in the peace settlements of the First World War. It was assumed as well by the League of Nations as a necessary implication of its Covenant's guarantee of the territorial integrity of all Members and particularly by the United States in the Stimson Doctrine refusing to recognize any Japanese acquisitions by its invasion and occupation of Manchuria. It was considered an implication of the Kellog-Briand Pact of 1928. The League of Nations accepted the Stimson Doctrine as a necessary implication of Article 10 of the Covenant of the League of Nations. The United States insisted on this principle in the Atlantic Charter of 1941 before its entry into the second World War.
The principle of "inadmissibility of the acquisition of territory by war is considered an implication of the obligation in Article 2, paragraph 4 of the Charter of the United Nations. It provides:
The General Assembly on the occasion of the twenty-fifth anniversary of the United Nations adopted the Declaration on Principles of International Law Governing Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations in resolution 2526 (XXV).
It proclaims the following principles:
The circumstances inducing acceptance of the cease-fire lines in 1967 were similar to those in 1949. They were justified as temporary measures necessary to end the hostilities but they could not, in any case, be regarded as conferring any rights to the territory occupied by Israel. The principle was strictly adhered to in the hostilities of 1956. On that occasion the United Kingdom, France and Israel under pressure of the General Assembly of the United Nations were induced to withdraw to their positions before the hostilities.
Security Council resolution 242 of 22 November 1967 stated three fundamental principles:
The first is the inadmissibility of the acquisition of territory by war. This principle required that Israel gain no territorial advantage by its occupation. Security Council resolution 242 calls for the:
The second principle stated in the preamble of resolution 242 of 22 November 1967 is "the need to work for a just and lasting peace in which every State in the area can live in security". This is the expression of Article I of the Charter of the United Nations and supported by the principles stated in Article 2 of that instrument requiring Members to settle all international disputes by peaceful means, to refrain from the use or threat of force in international relations and to assist the United Nations in maintaining these principles, and not to intervene in matters essentially within the domestic jurisdiction of any State.
The third principle of resolution 242 asserts that "all Member States, in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2, paragraph 2 of the Charter". Paragraph 2 makes it clear that those "principles" constitute positive "obligations" which the Members must "fulfill in good faith". According to Article 2, paragraph 4 of the Charter it is an obligation of all Members to "refrain in their international relations from the threat of use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations". Thus individual or collective self-defence against armed attack (Article 5lA and assistance to the United Nations in collective security action (Article 2 (5)) are the only permissible uses of force in international relations.
Resolution ES-7/2, adopted by the General Assembly in the seventh emergency special session of 29 July 1980, goes beyond any restricted
interpretation concerning the term "territories". It clearly reaffirms:
In addition, the General Assembly further passed a number of resolution in connexion with this principle reaffirming the inadmissibility of acquisition of territory by force: 2628 (XXV) of 4 November 1970, 2799 (XXVI) of 13 December 1971, 2949 (XXVII) of 8 December 1972.
According to the statement of the representative of Jordan to the Security Council on 8 June 1967, Israel unlawfully entered the West Bank during the 1967 war in violation of Article 2 (4) of the Charter of the United Nations. Alan Gerson, an expert on international law gives the following explanation of the events:
On 31 May 1972, General Weizmann of the Israeli Army explained:
Other generals interviewed at the same time did not appear to disagree with General Weizmann's assessment of the facts. General Rabin, then Commander-in-Chief of Israel's Armed Forces expressed a similar opinion.
Israel's legal view towards the 1967 occupation of the West Bank and Gaza is based on the premise that neither Jordan nor any other Arab State has any sovereign territorial rights to those territories. According to Israel's position there was no "legitimate sovereign" in the West Bank and Gaza previous to the 1967 war. The purported annexation by Jordan of the West Bank in 1950 was devoid of any legal effect therefore Jordan dues not have revisionary rights to the territory. On the other hand, Israel claims sovereignty to any territory of the former Palestine Mandate founded on historical and religious links to the biblical land.
The sovereignty of the Palestinian people over Palestine has been recognized by numerous United Nations resolutions. The inalienable rights of the Palestinians have been reaffirmed as well. In this regard the main General Assembly resolutions are the following:
The General Assembly at its seventh emergency special session on the question of Palestine adopted resolution ES-7/2 that reaffirming:
General Assembly resolution 35/169 of 15 December 1980 states:
Security Council resolution 465 of 1 March 1980 unanimously adopted determines:
IV. THE EFFECTS OF THE 1967 WAR ON THE STATUS OF THE WEST BANK AND GAZA
The position taken by the United Nations, supported by most countries of the world on the status of the West Bank and Gaza, is to consider those areas as occupied territories.
Israel has a different view. As early as December 1967, the West Bank came to be designated by Israel as Judea and Samaria. This designation reflects Israel's alleged historical and religious claims towards the territory. Shortly after the 1967 war Israel's Parliament passed enabling legislation for extension of "the law, jurisdiction and administration of the State of Israel to any area of Eretz Israel (Palestine) designated by the Government by order". On February 1968 the Ministry of Interior of Israel promulgated a regulation by which the West Bank and the Gaza Strip would no longer he considered as enemy territories. Thus, Israel considers itself as administering Power rather than occupier of the territories.
The 1907 Hague Convention, No. IV, respecting the laws and customs of war on land, and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949, 12/ provide the operative laws of armed conflicts. Israel is a party to the Fourth Geneva Convention. Its ratification entered into force on 6 January 1952. Article 42 of The Hague Regulations states that "a territory is considered occupied (for the purpose of application of the rules of belligerent occupation) when it is placed under the authority of the hostile army".
Article 43 provides:
Article 47 of the fourth Geneva Convention states:
Thus dispute arises when the occupant attempts legislative and institutional changes that go beyond the necessity of restoration of public order. It is inevitable that under the conditions of occupying Power, the civil rights of the inhabitants of the territories will to some extent, be restricted. Nevertheless, the military administration of the West Bank has gone far beyond making alterations necessitated by security considerations. The position of civil and political rights, including in particular property rights have been radically transformed. The Israeli representative to the United Nations declared in the General Assembly on 26 October 1977:
The Israeli views were questioned by an authority on international law, Prof. W. T. Mallison, according to whom the main goal of the Fourth Geneva Convention is to prove a basic or minimum standard of human rights protections for individuals, not to solve claims of sovereignty.
The purpose of the Fourth Geneva Convention of 1949 was to avoid a repetition of the atrocities and massive deprivations of human rights which were inflicted upon civilian populations during the Second World War by the Nazis in Europe and Russia and by the Japanese militarists in Asia".
Various international bodies have supported the legal consideration of applicability of the Geneva Convention to the territories occupied by Israel, among them:
-The International Committee of the Red Cross (ICRC) which is of the opinion that the Fourth Geneva Convention is applicable in toto in the occupied territories. Such view was clearly expressed in its 1973 and 1975 reports.
-The International Commission of Jurists.
-The United Nations through its various bodies, in particular the General Assembly, the Commission on Human Rights and the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories.
Security Council resolution 465 of 1 March 1980 unanimously adopted affirms "once more that the Fourth Geneva Convention … is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem."
The Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories stated, in its first report of 5 October 1970:
V. CHANGES IN THE GOVERNMENTAL SYSTEM IN THE OCCUPIED TERRITORIES
A. Legislative changes
According to Alan Gerson, during the period of the Jordanian administration, though the legislative authority was in the hands of the central Government in Amman, the municipal councils had a legislative role confined to ordinances of minor patterns. 15/
According to the reply received from the Government of the United Arab Republic on 29 July 1970 contained in the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, during the Egyptian administration in the Gaza Strip
Shortly after the 1967 war, the Israeli military command in the West Bank published on 7 June Proclamation No. 2 Concerning the Assumption of Government by the Israeli Defence Forces. Section 3 states:
Originally, these powers were exercised cautiously, with explanations for the justification or necessity for the order in question. As time went on, however orders which change the Jordanian law drastically so as to adapt it to Israeli policies, have become commonplace and issued without explanation.
According to the Hague Regulations and the Fourth Geneva Convention, the occupant may promulgate new legislation only for imperative reasons of public order, or military security (Article 43 of the Hague Regulations).
Article 64 of the Fourth Geneva Convention reiterates this. It states:
Though article 64 refers only to "penal law", its interpretation implies civil legislation as well.
According to official commentary to the Fourth Geneva Convention
Article 35 of Proclamation No. 3 of 7 June 1967 states that the military forces and their office must apply the terms of the Fourth Geneva Convention concerning the protection of civilians during times of war and concerning everything that affects legal proceedings, and that if there should be any contradiction between this Proclamation and the aid Convention, the terms of the Convention must be followed. This Proclamation has been repealed by Military Order No. 144 of 22 October 1967.
On 10 December 1970 the Israeli representative to the Special Political Committee declared:
In 1970 a governmental committee was proposed in order to study Jordanian laws with the purpose of replacing them by Israeli rules. This proposal was withdrawn for it conveyed the impression of annexation, which was a step that Israel was not politically ready to take. Amending Jordanian law would mean the same advantages for Israel without the problems annexation would entail.
The Area Commander has assumed full legislative power through the issue of military orders. The total amount of military orders is 854. Each of them is the equivalent of a new law. Of these orders, those dealing with security matters are, in fact, few in number. All attempts to challenge the Area Commander's legislative powers have been unsuccessful. According to Raja Shehadeh, a West Bank lawyer, the advantages of this arrangement are:
Raja Shehadeh goes on to state that Israeli military orders are not published in an official gazette and therefore are not made available to the public. They are not reported in the press or the radio, they are merely distributed among practicing lawyers. Non-lawyers are refused copies, no public library on the West Bank has a set of military orders and the courts are not provided with law libraries. As for Jordanian law, the civil code has become a rare item in the West Bank. The relevant Jordanian laws are out of print and difficult to find. If the order is for expropriating land, the people concerned are only notified orally. 19/
Even the request to supply the courts with a photocopier machine has not been taken into consideration. Some lawyers have applied for a permit to install one at their own expense, but so far the permission has not been granted by the authority in charge.
B. Executive changes
Under Jordanian administration the municipal councils in the West Bank were composed of elected representatives; the term of office for its members was four years. The number of members was not specified but was to be fixed by the Minister of Interior based on proportional representation.
On the local level the municipal councils were the highest indigenous political institutions. They played a substantive political role and due to the absence of a national Government, they assumed important responsibilities. Article 41 (a) of the Jordanian municipal law gave municipal government authority to act in 40 different areas.
During the Egyptian administration in the Gaza Strip:
The last municipal elections held on the West Bank under Jordanian rule took place in September 1963. According to Jordanian law, elections were scheduled to occur in September 1967. The Israeli Military Government suspended them for an unlimited period of time on the grounds that it would endanger public order, but finally, in November 1971 permitted them to be held in accordance with the Order Concerning Municipal Elections (Judea and Samaria). The Military Government emphasized that the candidates would have municipal duties and play the non-political role undertaken since occupation.
The elections took place in the West Bank in 1972. The participation was high compared to municipal elections held during the Jordanian period. Again early in 1976 elections took place in towns and cities in the West Bank. For the first time women exercised the right to vote as well as men regardless of their property-owning status. Palestine Liberation Organization (PLO) candidates were elected by a great majority in the municipal councils and as mayors.
Municipal government has been the base for a number of political leaders freely elected that they will play a national role in the future. Israel's decision to permit elections appears to be an example of democratic rule.
However, according to The New York Times dated 27 March 1981, a senior Israeli official said that municipal elections in the West Bank have now been indefinitely postponed, because the voting would endanger the Camp David Peace Agreement.
The means used to restrict the role exercised by the municipal councils and the mayors are considerable. The military government exercises a de facto control on the actions of the municipal government.
A bureaucratic layer placed above the municipal government, called the Supreme Planning Council was added by the Military Government. Its members are appointed by the Military Government itself and its primary goal is to implement the settlement policy in the occupied areas. It deals with planning, land use policies and annexation of lands. Furthermore, it has the power, by military decree, to nullify any municipal decision regarding planning, zoning and to forbid housing development in any area. 22/
The manner in which military orders are conveyed makes it extremely difficult for local officials to contest or question them. They often come from headquarters in the form of phone calls and are rarely confirmed in writing. If they are conveyed in written form, they are rarely signed by an individual, but bear the name "al-hukm al-'Askari' which means "the Military Rule". Though orders are written in both Arabic and Hebrew, municipal officials who do not speak Hebrew, have been informed that the Hebrew version is the official one and the Arabic is the official translation. Written orders are rarely stamped.
West Bank mayors are forbidden by the Military Government from meeting with each other even socially and West Bank towns and cities are prohibited from establishing any co-operative regional programmes. Such regional co-operation is essential for economic development. The financial problems faced by the municipalities are common to most localities; under occupation the regions are restricted in their fiscal planning and budgets. They cannot levy any taxes without prior approval by the occupation authorities. They are restricted in receiving grants and financial aid from the Arab World. In case of approval they must expend it according to a plan accepted by the Military Government, which has direct control of the entire operation: the quantity of money to be collected, the source, the purpose, the bank in which the money is to be deposited, the projects for which it should be spent, the frequency of expenditures. If the approval needed for the withdrawal of the money is not given by the Military Government, the local officials are forced to turn to Military Government for emergency loans. 23/
According to Emile A. Nakhleh, Professor of Political Science at Mount St. Mary's School, Emmitsburg, Maryland:
In the Gaza Strip the municipality comes under the direct control of the Israeli Military Government. Though Gaza is the only municipal government in the Strip, no municipal elections have been held since occupation. It has been ruled directly by a military officer or by a mayor appointed by the Military Government.
The last municipal election in Gaza took place in 1946. From 1948 to 1967 this territory was under Egyptian administration and no elections were held. Egyptian authorities favoured an appointive system of local government and, early in 1967, the Egyptian administration appointed a mayor. Soon after the war he was replaced by an Israeli military officer. "His primary concern and main policy focused on strengthening the Israeli occupation in the area." 25/
Following popular demand the Israeli authorities called on an Arab mayor who would appoint an Arab city council. Emile Nakhleh writes:
In May 1980 in the aftermath of a terrorist attack in the West Bank city of Hebron that left six Jews dead, the Government of Israel deported to Lebanon the Mayors of Hebron and Halhoul and the Sharia Judge of Hebron. The three Arabs had no direct connexion with the attack and were denied appeal procedures, available under prevailing law, by the Israeli authorities. Furthermore, the Fourth Geneva Convention prohibits deporting of individuals,
As a result of this action the Security Council on 8 May 1980 adopted resolution 468, which reads:
On 20 May 1980, due to the refusal of the Israeli authorities to allow the mayors of Hebron and Halhoul and the Sharia Judge of Hebron to return, the Security Council adopted resolution 469, which states:
In June 1980 the mayors of Nablus, Ramallah and Al Bireh were the target of an assassination attempt. As a result of this action two of them were badly injured.
The Security Council on 5 June 1980 adopted resolution 471, which reads:
On 19 December 1980 the Security Council unanimously adopted the following resolution:
C. Changes in the Judiciary
Soon after the Israeli occupation, the Israeli Military Command published Proclamation No. 2 concerning the assumption of government by the Israeli Defence Forces. Section 2 states:
Judicial systems have generally been permitted to function during belligerent occupation. Article 23 of the Hague Regulations and article 64 of the Fourth Geneva Convention make specific references to the judicial system of occupied territory.
Article 23 provides:
Article 64 states:
Nevertheless article 54 of the Fourth Geneva Convention permits removal of judges and officials from their posts at the occupying Power's discretion. Oppenheim explains the apparent contradiction in the sense that "the suspension of judges must be limited to instances of insubordination, express or indirect and that in other cases they must be permitted to serve with their independence unimpaired."
An important change introduced by the Israeli authorities was the creation of the Objection Committee under Military Order No. 172, dated 22 November 1967. According to Raja Shehadeh, the purpose of this Committee is to usurp powers which, according to Jordanian Law, should be in the hands of the courts. This tribunal is composed entirely of reserve military officers. It has exclusive jurisdiction to hear objections against decisions made regarding a large list of subjects such as: expropriation of land, payment of taxes, pension, rights, etc. 29/
The members of the Objection Committee are appointed by the Area Commander. The first appointments included Arab residents, with a jurist background. These members were soon replaced by Israelis, few of whom have any legal training. Since the Objection Committee has no fixed secretariat or meeting place, it is difficult to submit any objections to it. Often the hearing of the objection is delayed until enough cases make it worthwhile for it to convene since some of its members work in various parts of the country. In one case objection remained pending for over one and a half years.
The Objection Committee is not bound by the rules of evidence or procedure and it decides on its own on procedure.
The decisions of this Committee become final for there is no appeal available. West Bank lawyers have complained of its lack of objectivity.
Military Order No. 310 introduced the following alterations to the Jordanian Law No. 2 on the independence of the judiciary:
Article 102 of the Jordanian Constitution guarantees the right of all citizens to bring cases in the regular courts, civil or criminal, against the Government or any of its departments. This right has been denied by Military Order No. 164, issued 3 November 1967. It forbids the courts of the West Bank to hear any case or issue any order or decision against any of the following:
The Area Commander is empowered to issue a permit allowing the courts to hear any specific case.
The scope of this order was widened by a later amendment requiring a similar permit for cases involving property owned or possessed by any of the categories mentioned above. The order also restricts the right of the courts to summon any person employed by any of the above-mentioned categories to give evidence, submit documents, answer to interrogations orally or in writing without first obtaining the approval of the Area Commander. The effect of this order has been a drastic reduction of cases heard by the courts. It takes between four months and one year to obtain the permission required. Cases which may commence without a permit are delayed if a government employee is required to give evidence or submit documents. The consequence of this law is that a large segment of the population is immune to legal action. It is a basic principle of the rule of law that the executive and its servants should, like other bodies and individuals, be subject to the normal processes of the law. 31/
Another change which has affected the access to Court of the population of the West Bank has been the disproportionate increase in fees. Notarial fees for every signature before the notary imposed – fee of 50 files (14 $ cents). A recent amendment has revised it to 1.6 dinars. For every signature on a power of attorney the fee was one dinar. After the amendment it is 10 dinars (3.5$). 32/
On the other hand the number of officials has not been increased and their salaries have not been raised. There has been no improvement in services.
Raja Shehadeh claims that the two most frequent obstructions of process in the West Bank courts are the following:
The low standard of the courts in the West Bank is one of the concerns of the lawyers who have been on strike since 1967. Under such difficult conditions a lawyer cannot give the appropriate help or get a fair trial. Lawyers practicing complained that obstructions to their work exist at every level.
According to 1979 statistical data from Israeli sources, 2,090 new appeals were entered in 1978. 1,512 of these and cases pending from previous years were decided and 1,030 remained pending at the end of the year.
The West Bank lawyers have complained to the officer of the Israeli army in charge of the Judiciary about the prevailing conditions. In February 1976 a petition was sent to him asking for a committee to investigate the conditions and make recommendations. No response was made to this petition.
Before 1967 all lawyers in the West Bank were members of the Jordanian Bar Association. After the occupation the West Bank lawyers considered illegal the following actions:
The West Bank lawyers' approach was that the fact of appearing before the newly organized courts would give legitimacy to the new situation. In consequence, a large number of lawyers have been on strike since 1967 and refuse to appear before the courts with the exception of religious tribunals. The decision to strike was taken with the general belief that the occupation was a temporary state. The military authorities, however, passed military order No. 145 which made it permissible to Israeli lawyers to practice in West Bank courts. Though it was promulgated as a temporary measure the order has not been repealed.
The appearance of the Israeli lawyers in the West Bank was considered illegal under Jordanian Law which restricts court appearances to lawyers who are Jordanian nationals and members of the Jordanian Bar Association.
In consequence, from the beginning of the occupation West Bank residents found no lawyer to defend them. Gradually some lawyers began to take up cases before the military and civil courts. Nevertheless, the official strike of the lawyers has entered its fourteenth year.
Raja Shehadeh has summarized the consequences of the action as follows:
The main structural changes introduced in the courts after the occupation are:
The transfer represented a symbolic incorporation of East Jerusalem and it was in consequence one of the reasons for the lawyers' strike.
The absence of the right of appeal violates a fundamental principle of the rule of law and also opposes the provisions of the Fourth Geneva Conventions. Article 3 (1) (d) in connexion with internal armed conflicts, prohibits "the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affecting all the judicial guarantees which are recognized as indispensable by civilized peoples". The official commentary to this article made by Professor Pictet was: "All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The convention has rightly proclaimed that it is essential to this even in time of war".
The military courts in the West Bank have jurisdiction to hear any cases relating to acts committed before or after the Israeli Defence Forces entered the area. The trial by a military court of the offences committed before the occupation is contrary to the Fourth Geneva Conventions.
After the occupation Israel reactivated the Defence Emergency Regulations of 1945 which were repealed during the Jordanian administration. In 1950 the regulations were never used in the West Bank. They were established by the British mandatory power over Palestine as a regressive measure against acts of terrorism, including those of Zionist organizations.
People accused before military courts have difficulty in meeting their lawyers. According to article 11 of Order 29, the Commander might allow or refuse the prisoner to meet his lawyer. The policy relating to sentencing policy has gradually become more severe in the last few years. The sentence is imprisonment and a fine. The fines have increased in the past few years: one year's imprisonment involves a maximum of 150,000 Israeli shekels ($US 3,000 approx.). When the period of imprisonment exceeds five years the fine is 750,000 shekels ($US 15,000 approx.). A minor offence such as participating in a meeting which can be construed as political in nature is punishable for a period of up to 10 years imprisonment. Since there is no appeal the judge's authority is absolute. Arab prisoners have charged that convictions frequently are based on confessions through coercion. 36/
VI. CHANGES IN JORDANIAN LAW MADE BY ISRAEL
The following restrictions on basic rights are only some examples of the alterations introduced by Israel through military orders:
(1) Labour law
Among the various amendments to Jordanian labour law the most significant is Military Order No. 825. This amendment makes it illegal for any person to be elected to the administrative committee of a trade union unless he is working in the relevant trade or occupation or has been employed by the union. It also declares ineligible for nomination;
(2) Freedom of movement
Military Order No. 3 gives the military commander power to declare "closed areas" and in consequence forbids movement into or out of such areas without a permit. This rule has been used to declare the whole of the West Bank a closed area.
A permit is needed to leave the West Bank and it is given or denied at the sole discretion of the military governor. According to Raja Shehadeh,
(3) Collective punishment
The concept of personal responsibility is essential to the rule of law. The imposition of collective punishment involves taking summary action without any trial or the possibility of judicial review. Collective punishment is prohibited by the Fourth Geneva Convention on the treatment of civilians in occupied territories. This kind of punishment in various forms has been part of the Israeli policy in the occupied territories. It has not been denied by the Israeli authorities. The punishment is suffered by relatives, neighbours or even entire towns or villages. 38/
(4) Freedom of assembly
Military Order No. 101 prohibits the gathering or convening without a permit of ten or more people for a march or a meeting where it is possible to hear a speech or talk on political subjects or a subject which may be considered political. The order has been broadly interpreted by the military courts.
Illegal assembly carries a maximum sentence of ten years' imprisonment and a fine of 750,000 Israeli shekels (about $US 15,000).
One of the very few progressive changes introduced in the occupied territories' legislation is the abolition of the death penalty. Military order No. 268 of 24 July 1968 states:
NOTES AND REFERENCES
1/ Great Britain and Palestine 1915-1945, Royal Institute of International Affairs, Information Paper No. 20 (Oxford University Press, 1946), p, 51.
2/ See, in connexion with the history of Palestine, The Origins and Evolution of the Palestine Problem, Part I: 1917-1947, United Nations publication, Sales No. E.78.I.19, New York, 1978, p. 21.
3/ Henry Cattan, Sovereignty and Palestine, The Arab-Israeli Conflict, vol. 1 (American Society of International Law, Princeton University Press, 1974), p. 193,
4/ Alan Gerson, "Trustee-occupant. The legal status of Israel's presence in the West Bank". Harvard International Law Journal, vol. 14, No. 1, Winter 1973, p. 26.
5/ Cattan, op cit., p. 198.
6/ Ibid., p. 203.
7/ Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories (United Nations document A/8089), p. 91.
8/ United Nations document A/34/PV.7, pp. 18-20.
9/ Quincy Wright, The Middle East problem", American Journal of International Law, vol. 64, 1970 (American Society of International Law), pp. 270, 271.
10/ Alan Gerson, Israel, the West Bank and International Law (Frank Cass and Company Limited, 1978), p. 71.
11/ Ibid., pp. 71, 101.
12/ Entitled "Geneva Convention Relative to the Protection of Civilian Persons in Time of War," it is widely referred to as the "Fourth Geneva Convention".
13/ United Nations document A/32/PV.47.
14/ United Nations document A/8089, p. 24.
15/ Gerson, Israel, the West Bank and International Law, pp. 115, 116.
16/ United Nations document A/8089, pp. 93, 94.
17/ Gerson, Israel, the West Bank and International Law, p. 122.
18/ Raja Shehadeh, The West Bank and the Rule of Law (International Commission of Jurists, 1980), p. 103.
19/ Ibid., pp. 104, 43.
20/ United Nations document A/8089, p. 93.
21/ Emile A. Nakhleh, The West Bank and Gaza, Toward the Making of a Palestinian State (American Enterprise Institute for Public Policy Research, Washington, D.C., 1979), p. 11.
22/ Ibid., p. 14.
23/ Ibid., pp. 15, 18, 19.
24/ Ibid., p. 18.
25/ Ibid., p. 15.
26/ Ibid., p. 17.
27/ Ibid., p. 1.
28/ Gerson, Israel, the West Bank and International Law, p. 124.
29/ Shehadeh, op. cit., p. 30.
30/ Ibid., p. 33.
31/ Ibid., p. 36.
32/ Jordanian dinar = 1,000 fill = $US 3.
33/ Shehadeh, op cit., p. 40.
34/ Ibid., p. 50.
35/ United Nations document A/8089.
37/ Shehadeh, op cit., pp. 71, 72.
38/ United Nations documents A/8089 and A/10272.
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Document Type: Arabic text, Chinese text, French text, Russian text, Spanish text, Study
Document Sources: Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP), Division for Palestinian Rights (DPR)
Subject: Agenda Item, Armed conflict, Boundaries and demarcation lines, Expulsions and deportations, History, Internally displaced persons, Land, Occupation, Palestine question
Publication Date: 01/01/1982