Al-Haq follows with concern recent developments in the justice sector. A Draft Law by Decree Amending the Judicial Authority Law No. 1 of 2002 has been in circulation. A report issued by the Justice Sector Development Committee was also published on 28 November 2018 in conjunction with the circulated Draft Law by Decree. Both developments have a bearing on judicial independence and the justice sector.

Executive Summary

1. Social security is a fundamental human right, enshrined in Article 22 of the Palestinian Amended Basic Law. Article 10 of the Basic Law emphasises that basic human rights are binding and shall be respected. The right to social security is also safeguarded by the International Covenant on Economic, Social and Cultural Rights (ICESCR), which the State of Palestine acceded to without reservations. Article 9 of the Covenant provides that “[t]he States Parties to the present Covenant recognise the right of everyone to social security, including social insurance.” The State of Palestine is bound to realise this right on legislative, policy and practical levels. In this vein, the State of Palestine needs to demonstrate the “progress achieved” in the forthcoming discussion of the initial report it will submit under articles 16 and 17 of the ICESCR to the United Nations Committee on Economic, Social and Cultural Rights.

Following Al-Haq’s joint urgent appeal, the United Nations (UN) Working Group on Enforced or Involuntary Disappearances has sent a response to Al-Haq regarding the case of Palestinian citizen Saleh Omar Barghouthi, 29, who was detained by the Israeli Occupying Forces (IOF) on 12 December 2018. Al-Haq recalls the inconsistencies in the conflicting Israeli accounts as to the circumstances of Saleh’s arrest, detention, and fate, constituting concealment, and stresses that Saleh’s whereabouts remain unknown, amounting to enforced disappearance in violation of international humanitarian law and human rights law.[1]

Executive Summary

1. On 12 September 2018, the Palestinian Supreme Constitutional Court (hereinafter SCC or ‘the Court’) rendered Explanatory Judgement No. 2/2018 on the legal status of the Palestinian police, the concept of military affairs for the purposes of determining the jurisdiction of military courts, and the competent courts to prosecute police personnel (hereinafter ‘explanatory judgement’). Assuming a military character, the SCC explanatory judgement considered the Palestinian police as a body of a military nature, subject to the jurisdiction of military courts. The SCC reversed an earlier explanatory judgement, which rules that the police powers are civil in nature. The new SCC explanatory judgement vests military courts with an unlimited jurisdiction over civilians, providing a boundless interpretation of military affairs, which delineate the jurisdiction of these courts. The SCC decision violates the Palestinian Basic Law, international human rights standards, and longstanding established democratic practices in that it disregards best practices and the universal view of the police as a civil body in addition to the prohibition on the prosecution of civilians before military courts.