Al-Haq has repeatedly called upon the Palestinian Cabinet, in particular the Ministries of Justice and of the Interior, and the Attorney General, to restore the appropriate attribution of jurisdiction to the civil judiciary, as provided in the Palestinian High Court of Justice decision of 28 August 2008. The ruling affirms that the Military Attorney General and Military Judiciary have no jurisdiction over civilians. Despite this decision, on 30 August 2008, the Military Attorney General and the Military Judiciary brought Mu'ayyad Yousef 'Atiyyeh 'Assaf, a civilian detained by the Palestinian Military Intelligence agency, before a military court in Salfit, undermining those provisions of the Palestinian Basic Law protecting human rights and freedoms, especially of individuals deprived of their liberty.
Al-Haq has registered an alarming increase in arrest warrants issued by the military judiciary against civilians, and the subsequent detention of these civilians by Palestinian security forces. Palestinian security forces are totally disregarding any attempt made by the civil judiciary to exercise any form of control over their actions, capitalising on the unconditional support provided by the military judiciary to their misconduct. In particular, the fact that the military judiciary does not require the security forces to give written justification for arrest, detention and extension of detention of civilians, amounts to de facto endorsement of their illegal conduct.
Subjecting civilians to military jurisdiction severely infringes upon the fundamental rights of Palestinians and the rule of law as set forth in the Palestinian Basic Law, as they should be brought before the civil judiciary. Article 101(2) states that "military courts shall be established by special laws. Such courts may not have any jurisdiction beyond military affairs." Article 6 provides: "the principle of the rule of law shall be the basis of government in Palestine. All governmental powers, agencies, institutions and individuals shall be subject to the law."
The extension of military jurisdiction over civilians severely impairs the principle of judicial independence, as provided by Article 97 of Palestinian Basic Law: "the judicial authority shall be independent and shall be exercised by the courts at different types and levels. The law shall determine the way they are constituted as well as their jurisdiction. They shall issue their rulings in accordance with the law…" The lack of effective oversight by the civil judiciary of these illegal practices gravely impacts upon their credibility and amounts to complicity. Detaining and trying civilians under such circumstances constitutes arbitrary detention, which is prohibited under Article 32 of Palestinian Basic Law.
Under Palestinian law, the victims of these abuses of power have the right to an effective remedy under criminal and civil law, namely to see those criminally responsible brought to justice and to receive adequate compensation.
Al-Haq denounces the negligence of the Palestinian Executive and Judicial authorities in putting an end to such illegal practices and holding accountable those responsible for the above violations. Al-Haq is gravely concerned by the widespread application of military jurisdiction over civilians, which might lead towards an authoritarian regime, at the expenses of the fundamental rights and freedoms of Palestinians, the rule of law and the independency of the judiciary.
Therefore, Al-Haq calls upon:
1. The President of the PNA:
- to unequivocally repeal the Presidential Decree on Military Justice in order to reinstate the exclusive application of civil jurisdiction over civilians, and to put an end to the illegal exercise of jurisdiction by the military judiciary.
- as the Commander in Chief of the Palestinian Security Forces, must hold accountable the Military Judiciary and the Military Attorney General for their infringements upon the Basic Law, in relation to the illegal application of military jurisdiction to civilians.
2. The Palestinian Bar Association:
- to proactively defend the principle of the rule of law and independence of the judiciary.
- to initiate judicial proceeding on behalf of victims, to restore the legitimate implementation of Palestinian law in the OPT.
3. International organisations concerned with the independence of judicial systems:
- to lobby the Palestinian Executive to take actions to protect the independence of the Palestinian civil judiciary.
4. The United Nations Working Group on Arbitrary Detention:
- to address, within its mandate, cases of arbitrary detention in the areas under PNA civil control in order to confront this dangerous trend.