Preliminary recommendations of an ICJ mission on the Palestinian Legal System
The ICJ mission on the Palestinian Legal System took place from 15-25 January 2000.
The ICJ met with, among others, various officials of the Palestinian Authority and its Ministry of Justice, the Chief Justice, all three Attorney Generals, judges, the Bar Association, lawyers, and human rights groups.
At the conclusion of its visit to the West Bank and Gaza, the ICJ makes the following preliminary recommendations. While this list of preliminary recommendations highlights many of our issues of concern, it is neither complete nor exhaustive. Our recommendations will be finalized in a report to be published shortly.
Of course, the ICJ mission took place within the continuing Israeli-occupation of the West Bank (including East Jerusalem) and Gaza.
The effects of this occupation — which include, among other things, the trial of Palestinian civilians in Israeli Military Courts, the severe restriction on movement, and the expansion of illegal Israeli settlements — pose serious obstacles to the Rule of Law. The ICJ mission supports the peace process and hopes that it will lead to the end of all violations of all human rights. The ICJ mission’s focus on the Palestinian legal system is made within this context.
PART ONE: OUR PREVIOUS RECOMMENDATIONS
In December 1993, the ICJ sent a mission to the West Bank and Gaza to assess the Palestinian legal system. The present mission is a follow-up of this previous work. The present mission reiterates and reaffirms what we recommended six years ago. Among other things, we recommended that:
1) The Palestinian Authority incorporate international human rights norms within the legal system.
2) Judges and lawyers be fully consulted about questions relating to the judiciary and the legal profession.
3) There be strict separation of powers between the executive, legislative, and judicial powers in the Palestinian Authority.
4) The independence of the judiciary be guaranteed and enshrined in the constitution and different laws.
5) The judiciary be given full powers over all matters of a judicial nature, including those relevant to human rights.
6) A High Judicial Council be established with the power to appoint, promote, and dismiss judges.
7) The power of judicial review on civil, administrative, and constitutional matters be exercised by the highest judicial authority, either by establishing a Court of Cassation or a Supreme Court.
8 ) The independence of Palestinian human rights NGOs be respected and that they be allowed to function without the interference of the authorities.
PART TWO: OUR PRESENT RECOMMENDATIONS
I. COURTS (recommendations to the Palestinian Authority)
9) Abolish the State Security Courts.
10) Limit the jurisdiction of Military Courts to trying military personnel for offenses committed while on duty.
11) Strengthen the Civil Courts by:
a) Ensuring full implementation of court judgments;
b) Allocating appropriate funds in an independent budget for the court system. The budget should be included as one item in the budget of the Palestinian Authority and should be determined upon the advice of the High Judicial Council;
c) Renovating existing court buildings and building new ones if necessary;
d) Providing adequate administrative personnel and resources, including many more process servers and qualified support staff;
e) Adopting a law to create one coherent court system in the West Bank and Gaza.
II. LEGISLATION (recommendations to the Palestinian Authority and Palestinian Legislative Council)
12) Consult with the judiciary and legal community on all legislation related to the judiciary and the legal profession.
13) Sign and implement the Judiciary Law to guarantee the existence of an independent judiciary and to create a High Judicial Council.
14) Adopt a constitutional law (for example, the Basic Law or a constitution) to guarantee human rights and the separation of powers and which creates a constitutional court.
15) Continue and hasten efforts to unify the substantive and procedural laws applicable in the West Bank and Gaza.
III. JUDGES (recommendations to the Palestinian Authority and to the judiciary)
16) Judges should be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to perform their duties. All judicial discipline should be exercised by the High Judicial Council after a fair hearing. Judges should not be transferred for punitive reasons.
17) Take immediate steps to improve the status of judges by increasing their salaries and providing increased benefits.
18) Once established, the High Judicial Council should appoint qualified judges to deal with the heavy case load and backlog now burdening the Civil Courts. All judicial appointments should be based on merit.
19) Judges should be free and are encouraged to form and join associations of judges.
20) There should be no discrimination against women in appointing and promoting judges. Efforts should be made to increase the number of women judges and to ensure the full participation of women in the judiciary and the legal profession.
21) The public prosecutor should be considered a branch of the judiciary. The authority undertaking this prosecution should be separate from those of investigation and referral.
IV. BAR ASSOCIATION (recommendations to the Palestinian Authority and to lawyers)
22) The Bar Association should be a legitimate association of lawyers and be independent of and free from all outside interference. To that end, it should promptly conduct fair elections for its governing officers.
V. CONTINUING LEGAL EDUCATION (recommendations to the legal community and Donors)
23) A great need exists to provide continuing legal education to judges and lawyers. Donors are encouraged to continue to devote considerable resources for such education.
24) All judges and lawyers, whatever their level of experience, are encouraged to take advantage of continuing legal education, such programs offered by Law Institute at Bir Zeit University and others. In addition, jurists should take advantage of the legal database at the Law Institute.
25) Continuing legal education should include training in human rights and women’s rights issues.
VI. HUMAN RIGHTS & CRIMINAL JUSTICE (recommendations to the Palestinian Authority and to the judiciary)
26) The Mission visited numerous persons who are detained without having been charged or found guilty of any crime by a Civil Court (in fact, many such persons have not been tried by any court at all). No person should be so detained. Such persons should be granted fair trials in Civil Courts or be released.
27) Bar all confessions not proved to have been made freely and voluntarily.
28) Outlaw and prevent all forms of torture, including during interrogation.
29) Every defendant should be guaranteed an attorney of his/her choice. In case the defendant is unable to afford an attorney, the judicial authority should appoint an independent lawyer to the defendant.
30) Lawyers should be granted access to prisons and detention centers in order to have access to their clients.
31) Judges should regularly inspect prisons and detention centers to monitor the treatment of detainees.
32) Prisons and detention centers should be improved by renovating facilities, by expanding rehabilitation and education services, and by training prison staff.
33) Consider establishing a probation service, community service, and other alternatives to imprisonment.
34) The law, including the criminal law, should be applied with no discrimination against women.
VII. DEVELOPMENT AID (recommendations to Donors)
35) The development of the Rule of Law and of an independent Palestinian judiciary should take a higher priority among Donors.
36) Greater coordination is needed among Donors in the Rule of Law sector. While such coordination has begun, it needs to be strengthened.
37) Donors should use their influence with the PA to ensure the establishment of an independent judiciary, specifically by lobbying for the recommendations made by the ICJ Mission.
38) Donors and all legal development programs should make use of Palestinian experts and ensure that Palestinians are the principal beneficiaries of the assistance.Fact-finding mission reportsReports