Beinisch Doesn't Understand

The security establishment plans to shorten Palestinians' detention time. This only incidentally happens as the High Court hears petitions demanding an end to discriminatory arrest practices.

Hebron: Yehoshua and Adel are having a fight. A commotion ensues. Yehoshua, an Israeli citizen, is arrested, spends the night in the lockup in Jerusalem's Russian Compound and, the following day, a judge at the Jerusalem Magistrate's Court releases him on NIS 1,000 bail. Even though he lives in Hebron, Israeli law applies to him and he must be brought before a judge within 24 hours of his arrest.

Adel is also arrested and sent to the Etzion lockup. A day later, he is transferred to the Ofer detention center. He was born in Hebron and is a resident of the city, and Israeli military law applies to him - which allows for a Palestinian to be held under arrest for up to eight days without any judicial supervision. On the eighth day of his arrest, Adel is taken to a military court where the judge releases him on NIS 6,000 bail.

This is an imaginary story. First of all, because it is highly unlikely that Yehoshua would have even been arrested. Second of all, because a very short interrogation of Adel on the sixth day of his arrest would quite possibly have revealed that he studies at the same university attended by a well-known Hamas activist.

Shiri or Liran from the military prosecution would then ask the judge to extend Adel's remand because of important classified security information that has reached them. Nothing is actually said, but it is understood that perhaps during the period of his extended remand they will be able to persuade Adel to work with the Shin Bet security service and regularly supply information about his colleague at the university.

The right to freedom? The right to protection against arbitrary arrest? The right to a fair trial? These are fundamental rights that are taught in every law faculty. Therefore the young prosecutors, who were outstanding students in a special military-academic track, will show a great deal of consideration in this respect. So even though military legislation allows a military judge to extend the remand by another 30 days, they will ask for a mere eight-day extension. The judge will grant their request only partially, and extend the remand for only three days.

In defense of discrimination

On May 1, 2009 - and this is a true story now - seven individuals who participated in a demonstration against the West Bank separation fence at Umm Salmona near Bethlehem were arrested. Two of them were released that day - an Israeli citizen and a British citizen. There was no duty judge at the Jerusalem Magistrate's Court who could handle their arrest. The five others, all Palestinians, were held in detention for four days before being brought to a court, which only happened after their lawyer submitted a special request.

If you ask Israeli activists who have been arrested during protests against the fence, they will tell you that nothing agitates them more than the knowledge that their friends - who were arrested for exactly the same "crime" - are still behind bars.

Last year, two petitions were filed with the High Court of Justice, asking that the institutional discrimination imposed by Israel that differentiates between two kinds of people be rescinded. One petition was submitted on behalf of the Palestinian Prisoners Club by attorney Smadar Ben-Natan, and the second by attorney Lila Margalit on behalf of the Association for Civil Rights in Israel, Yesh Din - Volunteers for Human Rights, and the Public Committee Against Torture in Israel. The two petitions were heard by the court last Wednesday.

Responding on behalf of the state, attorney Aner Helman of the State Prosecution not only asked that both petitions be rejected, but also provided a long list of reasons as to why the discrimination was in effect.

"In quite a few of the security investigations carried out in the Judea and Samaria areas, it is not possible to establish in advance where and when an arrest will take place, unlike in a regular criminal investigation," he argued. "In many cases, suspects who reside in the Palestinian Authority are arrested when they arrive at IDF roadblocks."

"The fact that [many are arrested] in unplanned fashion makes it difficult to interrogate them initially and this holds up the investigation because in many such cases, one can only start preparing for the unplanned interrogation after the arrest is made and the relevant investigative file is located ... and the arrested person is transferred to where the interrogators are going to carry out the interrogation," Helman continued.

"Most of the security interrogations begin after confidential intelligence material reaches the security forces. In those cases, there are generally no objects that can serve as evidence ... and even if there are, they are beyond the reach of the security bodies. The only way (or almost the only way ) to get preliminary evidence that will support the intelligence information, is by interrogating the suspect," he said.

"Since the suspects are motivated by nationalistic feelings, their degree of cooperation with their interrogators is very low. Therefore a minimum period is required until preliminary evidence can be obtained that will make it possible for the interrogators to formulate a stance concerning the continuation of the investigation."

Unexpected amendments

Despite these serious contentions, it turns out that at this very moment amendments have been made to military legislation, which aim to shorten the period of detention for Palestinians. The amendments were preceded by staff work and discussions over the past few years within the Israel Defense Forces, the Shin Bet and the police in cooperation with the attorney general's office. This information was also revealed by Helman in his response to the petitions.

ACRI released a press statement containing a user-friendly table in which it details the current discrimination as compared with the slightly shorter discrimination now being proposed by the IDF and the prosecution.

In a remark to Margalit, Supreme Court President Dorit Beinisch said this was not a distinction between two kinds of people, but rather between two legal systems. For years, Beinisch said, she could not understand why it was necessary to delay bringing Palestinian suspects to court. In her opinion, according to the press release, there should be no distinction between Israelis and Palestinians.

Beinisch has issued many other comments about the state prosecution's proposal. She has proposed that the administration consider shortening the period during which Palestinians are detained even further, beyond that mentioned in the response to the petitions. There will be more to come.