The Israeli authorities’ presumption that all Palestinians are ‘enemy aliens’ or ‘potential terrorists’ has evident implications regarding the impartiality of the judiciary, the presumption of innocence, and the right to a fair trial.
The Palestinian Centre for Human Rights has issued a new report that looks at Universal Jurisdication and whether this special legal tool should be used to prosecute Israeli leaders for war crimes and crimes against humanity. The State of Israel and suspected Israeli war criminals have not been held to account for their numerous criminal acts, especially those most recently carried out during Operation Cast Lead in Gaza from December 2008 to January 2009.
From the report’s executive summary:
Regrettably, this lack of accountability, and the resultant climate of impunity, has been a longstanding feature of Israel’s occupation of Palestinian territory. Since the occupation began in 1967, neither the State of Israel, nor individuals suspected of committing war crimes, have been brought before a court and prosecuted in accordance with the norms of international law. Israel has been allowed to act as a State above the law; a reality illustrated by the reaction of powerful States – lead by the U.S. – to the publication of the Goldstone Report. PCHR firmly believe that this lack of accountability serves to encourage continued violations of international law and to undermine respect for the rule of law itself. It is Palestinian civilians – the protected persons of IHL – who pay the price for this impunity, as they continue to suffer at the hands of a brutal and illegal occupation.
Judicial regulation is an essential component in ensuring respect for the rule of law and protecting victims: in order for the law to be relevant, it must be enforced. Those accused of violating international law must be investigated and prosecuted. This judicial process is essential, both to ensure victims’ rights to an effective judicial remedy, and to combat impunity and promote deterrence. However, there are limited judicial mechanisms available to Palestinian victims of Israeli violations of international law.
According to the terms of the 1995 Israel-Palestine Interim Agreement on the West Bank and the Gaza Strip, the Palestinian National Authority (PNA) does not have jurisdiction over Israelis. This explicitly removes Israeli citizens, and members of its armed forces, from the jurisdiction of the PNA; no Israeli may be brought before a Palestinian court. This legally binding restriction effectively removes the Palestinian judicial system from the ambit of legal options available to victims.
The State of Israel is legally bound to investigate and prosecute Israeli citizens accused of committing international crimes. To date, however, Israel’s investigations have proved inadequate, while prosecutions – particularly at the command level – have not been forthcoming. In this respect, Israel must be regarded as shirking its legal obligations, and denying its victims effective judicial remedy.
‘The Principle and Practice of Universal Jurisdiction’ outlines the inadequacies of the Israeli judicial system. It is presented that this system – as it relates to Palestinian victims of Israeli violations – does not meet necessary international standards with respect to the effective administration of justice. The Israeli authorities’ presumption that all Palestinians are ‘enemy aliens’ or ‘potential terrorists’ has evident implications regarding the impartiality of the judiciary, the presumption of innocence, and the right to a fair trial. The hierarchical nature of the military, the ineffective manner in which investigations are conducted, and the lack of civilian oversight – as epitomised by the wide margin of discretion awarded by the Israeli Supreme Court – all combine to fundamentally frustrate the pursuit of justice.
Justice for Palestinians is not attainable within this system.
Read the report here.