Otherwise Occupied / One Country, Two Legal Codes

Palestinian suspects - including minors - can be legally detained for far longer periods than Israelis, and for lesser offenses.

Let's imagine this scene: eleven Palestinian youngsters under the age of 18 demonstrating with Palestinian flags and posters at the north-west entrance of the Ariel settlement, demanding that the old road which leads to Salfit be reopened. Let's assume that these youngsters aren't attacked by the Ariel residents. After all, this is not a hotheaded settlement, its zealotry is limited to land fever.

Nonetheless, under military procedures, the youth are violating security codes relating to "a prohibition of incitement activity and hostile propaganda," which were signed by then-GOC Central Command Uzi Narkiss in August 1967. The bans apply to "a group of 10 or more people who gather at a site for a political purpose, or for a matter that can be interpreted as being political," such as waving a flag or distributing incendiary ("incitement" ) materials. Even if they are aged 13 to 17, these imaginary demonstrators can be detained and interrogated for eight days before they are brought to a military tribunal.

Uzi Narkiss banned Palestinians’ political activities, even flag-waving
State Archives

What happens to Jewish youth of the same age who mutilate trees on lands belonging to Palestinian villages in the Salfit district? Even though they live in the same area as the Palestinian youth, a different law applies to them: Israeli law. Under Israeli juvenile law, should IDF soldiers or police make the effort to detain Jewish youth for mutilating trees, minors under the age of 14 can be held for up to 12 hours, and minors over the age of 14 can be detained for 24 hours. Israeli military law does not distinguish between a Palestinian minor and an adult when it comes to their primary detention, before trial. Palestinian detainees under and over the age of 18 can be held for eight days. One country, two legal codes.

For some people, this circumstance of double standards contradicts human logic, professional norms and ethics. In 2010, two petitions were lodged with the High Court of Justice disputing such structural discrimination: Attorney Lila Margalit represented the Association for Civil Rights in Israel, Yesh Din-Volunteers for Human Rights and the Public Committee Against Torture in Israel; attorneys Smadar Ben Natan and Avigdor Feldman represented the Palestinian Ministry of Prisoners' Affairs. The petitioners sought to make prearraignment detention periods for Palestinian suspects equivalent to those of Israeli suspects.

And as often happens, a rare coincidence was discovered: The state prosecutor's January 2011 response to these High Court petitions indicated that "a decision was reached recently to institute far-ranging changes in detention periods designated under the security codes; these changes are supported by the IDF, the Israel Police and the Shin Bet security service."

These "far-ranging" changes were incorporated in an amendment to the military codes signed by then-GOC Central Command Avi Mizrahi on February 2, 2012, which are gradually being instituted between March 1 and August 1. The amendment reduces the period of detention, but does not equalize the period of detention faced by Palestinian and Israeli suspects. This disparity, explained the prosecutor, is justified in terms of the essence of "territory under belligerent occupation for a long period of years." The inequality is substantiated via reference to the "fanaticism" of Palestinian detainees who operate on the basis of "ultra-nationalist, ideological motivations," and so "interrogation of them is more difficult."

The inequality is also justified in budgetary terms. The reduction in the length of time Palestinian detainees are held requires the security apparatus to allocate more judges, military prosecutors, soldiers and security escorts for prisoners.

The revision that bears Mizrahi's signature does not distinguish between minors and adults. It reduces the first detention of a security suspect from eight to four days, but it also allows the Shin Bet to receive automatically an additional detention period of 48 hours, and then another 48 hours, without a judge's review.

Accounting for disparity

Writing for all the petitioners, Margalit concludes that this revision "does not provide a remedy for the gravely illegal character" of the military codes. Thus, the High Court's discussion of the petitions continues.

On April 25, a Supreme Court panel headed by Justice Edna Arbel ordered the state to reconsider three topics: the length of detention periods for Palestinian minors, detention until the end of the trial process (the revision reduced this period from two years to a year and a half, in contrast to the nine-month maximum that pertains to Israelis ), and the definition of "security offenses."

Addressing this third topic, Margalit wrote in response to the state's revisions that "the definition is still expansive. It includes dozens of clauses and relates to acts such as holding a protest parade or staging an assembly without a permit, encroaching on a closed-off military area, waving a flag without a permit and printing 'materials that have political significance' without permission from a military commander." Margalit asked whether the state's position is that "an Israeli suspect who is accused of murder must be brought to a judge within 24 hours, whereas a detention period of four days can be warranted for a Palestinian who is suspected of encroaching on a closed-off military area, or who took part in a demonstration that lacked a permit?"

It is interesting that the court did not ask the state to reconsider the initial period of detention for a suspect (96 hours for a Palestinian, as compared to 24 hours ). Does that mean the court accepts the state's explanations accounting for this disparity?

Attorney Aner Helman explained for the state prosecutor's office: "Since the goal of the initial detention period [of a Palestinian in the occupied territory] is to gather preliminary evidence, there is no alternative other than to determine that a suspect can be held initially for a reasonable period of time needed to collate evidence as mentioned above, before he is brought to a judge."

In Margalit's view, the argument about detention time being warranted to "gather evidence" is not tenable. If it is not entirely arbitrary, she wrote, the detention of a suspect must be based on reasonable suspicion. The High Court asked the state to submit its reevaluation of these topics by December 1, 2012.

The petitioners show no signs of backing down. As for the state? In the first answer it submitted to the court last year, the state acknowledged the basic truth: "In light of the sensitive security situation in Judea and Samaria, a situation of violent conflagration or an urgent, wide-scale military operation can arise, and this can bring about a situation in which many hundreds of persons are detained within a number of days."

And indeed, one can imagine a scene whereby hundreds of unarmed Palestinian groups demonstrate simultaneously at the entrances to all the settlements. How would they be deterred from demonstrating, were their demonstration not to be deemed illegal, and were the participants not classified automatically as suspects who are to be detained before incriminating evidence is accumulated against them?