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Criminal Law on the Two Sides of the Green Line: HCJ 7932/08 Al-Harub v. Commander of the Military Forces in the Judea and Samaria Area (Judgment of December 29, 2009)
Court Watch | 7932/08 | 1.1.2010 | Adv. Yossi Wolfson
Criticism
The status of the West Bank as occupied territory under international law is used by Israel to justify a regime of separation which employs two different legal systems, one for each of the population groups. This system essentially preserves the hegemony of the Jewish ethnic population over the Palestinian population (separated into several subgroups to each of which Israel applies a different law). One of the aspects of this legal separation is the separate criminal laws which are applied in accordance to Knesset legislation on one hand and military legislation in the West Bank on another.

In accordance with the powers awarded it under international law, Israel has enacted criminal security provisions in the West Bank. Individuals who breach these provisions are tried in military courts operating in the OPT. This too, in accordance with the powers granted to an occupying power under international law.[1] In theory, this is a territorial system: anyone present in the territory comes under these laws and these courts: Palestinians, Israelis and foreign nationals. In theory, Israeli criminal law, on its part, is largely territorial (other than provisions with extraterritorial application in exceptional cases), and does not apply in the OPT. However, a special provision in Israeli law allows trying Israelis in civil courts inside Israel, under the Israeli penal code for actions carried out in the OPT.[2] Other provisions allow trying Palestinian residents of the OPT in Israeli courts and under Israeli criminal law: whether because they were involved in actions carried out (even if only partially) inside Israel or because the act was directed against state security or against Israelis.[3] In practice, Israelis are never tried in military courts in the OPT and under the military legislation of the OPT, whereas Palestinians are tried both in the military courts and in the civil courts inside Israel, as per the discretion of the Israeli prosecution.

The adjudication of Israelis and Palestinians according to two separate legal systems is an anomalous and unacceptable phenomenon, which, however, the general public and the courts have been accustomed to accept as self-evident. However, the problem of having two parallel legal systems surfaces when it comes to Palestinians who may be tried in either system, according to the prosecution’s discretion.

The Al-Harub case is one instance where a resident of the OPT attempted to challenge the discrepancy between the law applied to him, as a resident of the OPT tried in a military court therein, and the law applied to those tried in an Israel court. The case involved a failed attempt to blow up a café in Jerusalem using a suicide bomber. The explosive belt did not explode due to a malfunction, and its bearer was apprehended and brought to trial in an Israeli court. He was convicted, inter alia, with attempted murder, an offence carrying in Israel a maximum penalty of a 20 year prison sentence – and was sentenced to 22 years in prison.[4] Over time, others involved in the affair were arrested, including the petitioner Al-Harub, who had supplied the explosive belt and determined the location of the attack. Al-Harub was tried in a military court, under West Bank military legislation, on the count of deliberate attempt to cause death, which is the equivalent of attempted murder under Israeli law. If he were tried in Israel, he could have been sentenced to a maximum prison term of 20 years. However, in the OPT, the maximum penalty for a deliberate attempt to cause death is a life sentence – and that was the sentence imposed on Al-Harub.

The Al-Harub petition was not directed against the severity of the sentence, nor at the discrepancy between the sentence issued to the explosive-belt wearer and the person who sent him to the Jerusalem café. It seems that the dictum of the courts that the dispatcher bears a heavier responsibility than that of those being dispatched carries some weight. However, the severity of the sentence must be determined in the framework of a unified legal system and a single set of maximum penalties. The petition was directed against the legal situation whereby the maximum penalty for the same offence changes according to the prosecution’s decision in which court to try the case.

Albeit on another matter, thus remarked Justice Rubinstein:

It is proper for the courts in the Area [the OPT] to consider the practice in Israel in such matters. This does not mean comparison per se, and, as stated in the Masalmeh case,[5] the differences between the law in Israel and security legislation stem from confronting the circumstances in the Area. However, even if these are two different sources of power and two different “sovereign” capacities, “have we not all one father?” (Malachi 2:10), namely – in essence – Israel overarches all. Appearances also justify the military court often address parallel case law in Israel, even if it is not bound by it under the law in effect and considering the different circumstances.[6]

However, in Al-Harub, the court, in Rubinstein’s words, refuses to intervene in the normative discrepancy between Israeli internal law and military law, which informs the military courts in the OPT:

[T]he existence of a discrepancy between the law in the Area and the law in Israel does not, of itself, constitute grounds for judicial intervention and it stems from the various – historical and current – circumstances.[7]

In 1988, the High Court of Justice (HCJ) reviewed the discrepancy between the Israeli criminal system, which included an appeals instance, and the system in the OPT, which did not include such an instance until then. As per usual, security considerations were used to justify the discrepancy between the legal systems, with a distinction being made between the situation in the OPT, which were being held temporarily and the full and complete legal system required in a permanent state with stable governing systems. Justice Dov Levin wrote then:

This logic is dissolving in the reality present in our case: ongoing control of the held Territories for a long period of time, over 20 years; open borders and almost free movement between the two areas; a strong and permanent incorporation of economic and other systems among residents of the two areas – the state on one hand and the Judea and Samaria and Gaza Areas on the other; similar security problems in the two areas and almost identical legal systems, as far as proceedings carried out under the Defense (Emergency) Regulations, with the exception of the right of appeal which exists in the state and is absent in the Territories.

I cannot accept that a defendant who was tried for terrorist actions in Kefar Saba should enjoy the right of appeal, if convicted, whereas, if the same defendant was charged with the aforesaid crime in Qalqiliya, which borders on Kefar Saba, he would be unable to benefit from such a right. The same holds true for Jerusalem and Bethlehem or Ramallah, and the same all along the borders of the state.[8]

The same should hold true for maximum penalties, substantive laws, criminal procedures, eligibility of judges, rules of evidence etc. Over forty years after Israel seized control of the West Bank, these should hold even truer than they did 21 years after the occupation began. However, the different laws – different on a personal, not territorial basis – have become too substantive a part of Israel’s regime for it to give it up today.


Adv. Yossi Wolfson
The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
[2] 
See Section 2 of the schedule to the Law Extending the Validity of the Emergency Regulations (Judea and Samaria and the Gaza Region – Adjudication of Offences and Legal Aid) 5727-1967. This is also established in Article XVII(4)(b) of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995 (the Oslo Accord).
[3] 
Sects. 7 and 13 of the Penal Law (consolidated version), 5737-1977.
[4] 
SFC (Jer.) 5021/02 State of Israel v. Mash’al (2002).
[5] 
HCJ 1073/06 Masalmeh v. Military Court of Appeals in the Judea and Samaria Area (2006), judgment of March 26, 2006 (in Hebrew).
[6] 
HCJ 3450/06 Dweib v. Military Commander (2008), judgment of February 12, 2008 (in Hebrew), para. 1 of the opinion of Justice Rubinstein.
[7] 
HCJ 7932/08 Al-Harub v. Commander of the Military Forces in the Judea and Samaria Area (2009), judgment of December 29, 2009, para. 8.
[8] 
HCJ 87/85 Arjoub v. IDF Commander in the Judea and Samaria Area (1988), judgment of February 7, 1988 (in Hebrew), from the opinion Justice Dov Levin. The petition to introduce the right of appeal was rejected, but the court recommended its introduction via appropriate military legislation.
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