Problems Defending Palestinians in Israeli Courts

Established in 1992, the Addameer (Arabic for conscience) Prisoners Support and Human Rights Association provides support for Palestinian prisoners and works to end torture, arbitrary arrests and detentions, other forms of abuse, and unjust and unequal treatment in Israel's criminal justice system that handles Jews one way and Palestinians another.

In January 2007, it published a report titled "Defending Palestinian Prisoners: A Report on the Status of Defense Lawyers in Israeli Courts" in which it explained obstacles lawyers face in representing Palestinians in military and civil courts. They're hampered by military orders, Israeli laws, and prison procedures that prevent them from adequately helping clients - from their time of arrest through detention, trial, imprisonment, appeal, and other constraints against justice.

Yet international law is clear and unequivocal. Article 2, section 3(b)(c) of the International Covenant on Civil and Political Rights (ICCPR) states:

Addameer's report is based on interviews, from May - July 2006, with 14 defense attorneys representing Palestinian clients. Their accounts show what Arabs are up against in Israel's criminal justice system, one imprisoning over 650,000 Palestinians since 1967, detaining between 9,000 - 12,000 or more at any time, many hundreds administratively without charges or trial, hundreds aged 18 or younger, and dozens of women.

Palestine is under an oppressive military occupation. At times of political tension, the IDF detains large numbers of Palestinians "because the regulations that govern Israeli military tribunals provide little procedural protection to detainees." From March - October 2000, over 15,000 West Bank Palestinians were arrested. Over 1,000 were held in administrative detention without charge.

Procedural flexibility lets military prosecutors process large number of cases swiftly to the disadvantage of defendants. Most are settled by one-sided plea bargains. In 2005, nearly 10,000 cases were handled. Only 167 went to trial, and of those, 15 acquittals were won. In the same year, military courts conducted nearly 12,000 hearings to extend prisoner detentions and levied around $3 million in fines, nearly always against people acting freely or in self-defense as international law allows, suspected of doing it, or their family members as well as themselves.

Three types of courts have jurisdiction over Palestinians:

Lawyers' citizenship or residency status dictate their ability to represent clients. Those in the Occupied Territories (OPT) may only work in military courts and are constrained by checkpoints and other travel restrictions from visiting clients. Meeting them inside Israel is nearly impossible as travel permits are rarely given for "security reasons."

As a rule, West Bank attorneys see clients for the first time on hearing days and only a few minutes in advance. Gaza ones can't represent West Bank clients because travel permission is nearly impossible to get. It means judicial fairness and international law are severely compromised from the start.

Lawyers with Jerusalem IDs face other obstacles. They may take the Israeli Bar Association test to be licensed in Israeli courts. However, those passing the Palestinian Bar must apply annually to the Israeli Department of Justice for permission to represent clients in military courts and to visit them at interrogation centers and prisons.

Lawyers who are Israeli citizens, Arabs and Jews, may represent clients in military and civil courts, including the High Court, and may apply for permission to visit clients in detention. However, they may not enter Gaza or Area A (under Palestinian control) in the West Bank.

Obstacles to A Legal Defense

Article 49 of the Fourth Geneva Convention prohibits:

After arrest and initial detention, Palestinians go first to interrogation centers. They may be held without judicial order for eight days and thereafter indefinitely. Lawyers have no access for up to 90 days, and prisoners have  virtually no other outside contact during detention.

Following interrogation, they may either be released, formally charged, or placed under indefinite administrative detention. Those charged are transferred to Israeli prisons to await trial. Bail is almost never allowed. Administrative detainees are taken to Israeli prisons for six months after which they're subject to indefinite extensions.

Lawyers find it difficult to impossible to visit clients because restrictions "are so onerous" that most don't even try, except for the brief moments they're allowed before hearings begin.

In addition, learning where clients are held is so daunting that one attorney said:

Even worse, under Israeli law and military orders, Palestinian prisoners accused of being "security threats" may be prohibited from consulting an attorney - in military courts for up to 90 days and in civil ones up to three weeks. Appeals to the High Court may be made, but only by lawyers with Israeli citizenship or Israeli NGOs.

Permission is required to see clients in prison, but only on certain days, under imposed restrictions, and all prisons have their own procedures. Jewish lawyers are less impeded than Arab ones, but obstacles impeding judicial fairness hamper prisoners and counsel throughout the judicial process.

For example:

Entering facilities is nerve-wracking and intimidating as well. West Bank lawyers aren't allowed to drive to military courts on the grounds that they pose security threats. Once at a facility, they endure waits to be admitted. They need soldiers to unlock gates. Some are cooperative, others not, and then they must clear security. Those in traditional Islamic dress are especially pressed to prove they're lawyers, not terrorists seeking entry.

One attorney described his Gaza experience saying:

Prior to summer 2005, Gazans were tried in the Erez military court on the Gaza/Israeli border through which lawyers needed permission to cross. From 2003 - 2005, only two got it, and they endured "obtrusive security procedures," including public and at times embarrassing searches, long delays, and no set hearing schedules. 

In addition, whenever border crossings were closed, lawyers were denied access to Erez, so weren't able to assist clients and couldn't see them "during their detention at facilities inside Israel."

Post-disengagement, Erez was closed and lawyers are now denied access to Israeli military courts and prisons inside Israel. Gazans arrested are usually held in Askalan/Shikma prison, then tried or given detention hearings at the B'ir Sab'a/Beersheba courthouse inside Israel. Only lawyers with Israeli citizenship may represent them. Gazan attorneys "are reduced to playing the tole of messengers between the families of prisoners and lawyers inside Israel."

Language is another obstacle as military and civil court proceedings are in Hebrew. Lawyers must be proficient enough to understand them. Palestinians may not be and require Arabic translations, a process their attorneys call "uneven" at best. Also, translators speak so quietly that detainees may not understand the most perfect translation, so can't follow the proceedings properly. Nor can their families consigned to the back of courtrooms.

Another problem is a lack of official court proceedings in Arabic, so prisoner responses become "the answers of the guy who is translating." In addition, "all confessions, statements, police reports, military codes and judicial rulings are provided in Hebrew without translation, even though Arabic is an official language in Israel." But not in military or civil courts.

Under West Bank military orders, unauthorized political activities are crimes, including putting up posters, writing slogans on walls, being members of certain political parties or organizations, displaying Palestinian flags or symbols, attending demonstrations, and socializing with persons classified as security threats - legal activities in democracies but not in Israel or the OPT.