Prisoners: Gaza and West Bank Law
The procedures for arrests under Gazan law are governed by the 1924 Criminal Procedure (Arrest and Searches) Ordinance, promulgated under the British Mandate of Palestine.15 This law grants a great deal of power in arresting citizens without an arrest warrant. This power is granted in different situations. For example, Article 3.1.b. grants the arresting officer the power to arrest without an warrant if reasonable suspicion exists that suggest that the individual committed a crime.
The other sections and subsections outline alternate situations in which an arrest warrant is not needed. Article 3.1.b. is the most far-reaching of the articles and effectively allows the arresting officer almost complete discretion in carrying out an arrest.
While the power to arrest is extremely broad, there are some checks established against arbitrary arrests. Once the arrest has been made and the citizen has been taken to the police station, he or she may only be kept in police custody if the superior officers believe there to be sufficient suspicion supporting the arrest. Article 10 of these rules provides that any individual arrested with or without an arrest warrant must be taken before a judge within 48 hours of the arrest. The judge may extend the detention for a period up to 15 days if the preliminary evidence so warrants. This 15 day period may be renewed. If the individual is held for a 30 day period then he must be released unless a request for an extension of the 15 day period is submitted directly to the Attorney General.
The procedures are similar in the West Bank. Arrest procedures in the West Bank are governed by the 1961 Jordanian Code of Criminal Procedure which requires the detainee to be taken before the Attorney-General within 24 hours. Article 112 of this code states that: "The Attorney-General shall question immediately the accused brought before him under the terms of a summons. The accused brought before him under the terms of a warrant shall be questioned within 24 hours of being held in custody". The second paragraph of this article states: "At the expiry of the 24-hour period, the custodial officer shall automatically bring the accused before the Attorney-General".
According to Article 113 of this code, the arrest of the accused under the terms of a warrant and held in custody for more than 24 hours without being questioned by the Attorney-General or brought before him in accordance with the provisions of article 112, shall be regarded as an arbitrary act and the official responsible shall be prosecuted for the offence of deprivation of personal liberty provided for in the Penal Code. However, in the West Bank independent accountability is conducted by an arm of the arresting authorities, the prosecutor general, and not by an arm of the judiciary. The checks upon arrests are thus more stringent in Gaza than in the West Bank.
The draft Basic Law outlines general provisions of emergency. Since the installation of the Palestinian Authority, officials have indicated that the security situation in the areas under its jurisdiction is exceptional and thus it is permitted in these circumstances to take exceptional measures.
According to Palestinian law, the jurisdiction to investigate and arrest is restricted to representatives of the Attorney-General. Nobody may be detained for more than 30 days without written permission from the Attorney-General. On numerous occasions, police and security forces acted outside the Attorney-General's jurisdiction and outside the law. This clearly undermines the rule of law and the jurisdiction of both the Palestinian General-Attorney and the judiciary. The removal of the former Attorney-General, Khaled al-Qidreh, meant an improvement in this situation, since many of those detained during mass arbitrary arrests were detained under the instructions of him.
The next Attorney-General Fayez Abu Rahmeh ordered the release of some of them, who were, only a short time after their release, re-arrested by the Palestinian security forces. Moreover, the Head of Prisoner Administration, Muhammad Tawfik Atanani, and his deputy were also arrested for complying with the Attorney-General's instructions. This meant the undermining of the status of the Attorney-General. Fayez Abu Rahmeh recently resigned because of continuous intervention by the Minister of Justice Freih Abu Meddein and heads of the security forces.
The establishment of State Security Court and the obstruction of justice it creates, including the denial, in some instances, of the right of freedom of assembly and the political arrests which are undertaken by the Palestinian Authority from time to time, are features of de facto state of emergency.16 According to the unratified draft Basic Law, by decree the president is permitted to announce the state of emergency for a period not exceeding 30 days.
In article 103, it is provided that arrests relating to the state of emergency must abide by the following requirements: (1) the detention shall be reviewed by the Attorney-General or the concerned court within a period of time that does not surpass 15 days from the date of detention; (2) the detainee has the right to hire a lawyer. However, the draft Basic Law did not emphasized that even under a state of emergency, there are rights that cannot be suspended, which include, inter alia, freedom from torture, the right to life and the right to freedom of conscience and belief. These rights are not protected by the draft Basic Law, in a state of emergency.
On 10 September 1997, Attorney General, Fayez Abu Rahme stated that arbitrary arrests carried out by the Palestinian security forces were in keeping with the Emergency Regulations of 1945 issued by the British Mandatory Authorities. The usage of the defunct Emergency Regulations of the British Mandate gives the Palestinian Authority the power to hold detainees for long or virtually indefinite periods routinely or under broadly defined and easily obtained "exceptional" executive powers. Administrative detention is at the moment only authorized by the defunct Emergency Regulations of 1945 and later by Israeli orders. For these regulations to be instated, the Palestinian president must authorize the Palestinian Legislative Council to officially pronounce a state of emergency, to publish their decision and to legislate the regulation of the emergency laws. Until now, the Palestinian Authority had not taken any of these steps to implement the Emergency Regulations. Moreover, it is not to be expected that the Palestinian Authority would apply relevant Israeli military orders.