The Supreme Criminal Chamber in the Gaza Strip: Problems and Reality

On Wednesday, 15 June 2022, the Institute of Law (IoL) of Birzeit University held a legal encounter on The Supreme Criminal Chamberin the Gaza Strip: Problems and Reality. Bringing together a number of lawyers, members of the legal community, and interested persons, the presentation was made by Dr. Samia al-Ghusein, Associate Professor of Public International Law.

In her opening statement, Ms. Lina al-Tounisi, Coordinator of the IoL Gaza Office, welcomed the speaker and audience and made a briefing note about the Birzeit Legal Encounters Programme. Dr. Al-Ghusein stated that developed countries showed great interest in establishing and expanding specialised courts. These courts play an effective role in promoting independence, unity, and efficiency of the judicial system, achieving full justice, and ensuring summary disposition of cases. Proceedings used to take a long time before court, delaying or sometimes denying citizens’ access to their rights.

Dr. Al-Ghusein made a review of legal provisions on the formation of regular courts under the Palestinian law. According to the Law No. 5 of 2001 on the Formation of Regular Courts, the High Judicial Council (HJC) is vested with the power to establish specialised chambers or panels in the Conciliation Courts, Courts of Appeals, and High Court only. However, the Law does not authorise the HJC to create specialised chambers or panels in Courts of First Instance with either civil or criminal jurisdiction. Interpretative judgment shall not be resorted to wherever an explicit, unobscured and unambiguous provision is provided. Hence, based on the explicit provisions of the Law on the Formation of Regular Courts, the HJC may not put in place specialised panels or chambers in the Courts of First Instance, whose criminal jurisdiction is limited to relevant crimes and misdemeanours. Pursuant to Article 10 of the Law by Decree No. 30 of 2020 on the Formation of Regular Courts, “[t]he Court of First Instance shall establish a judicial chamber to hear civil cases and another judicial chamber to consider criminal cases.” Each chamber will consist of one or more panel(s) as determined by the presiding judge of the Court of First Instance and according to need. In the event the proper functioning of a court so requires, the presiding judge of the Court of First Instance is entitled to set forth a specialised panel within each civil or criminal chamber in the relevant Court of First Instance or Conciliation Court. In addition, Article 10(3) of the Law by Decree prescribes that “[t]he Chairman of the High Judicial Council shall be entitled to establish other specialised judicial chambers in the Court of First Instance in case the functioning of the judicial processes thus requires, provided that he specifies the subject-matter jurisdiction (jurisdiction ratione materiae), jurisdiction of value (amount in controversy jurisdiction), and territorial jurisdiction (jurisdiction ratione loci) for each in accordance with a regulation.”

Dr. Al-Ghusein elaborated on the High Criminal Court in the West Bank. After it had been promulgated, the Presidential Decree No. 20 of 2007 on the Formation of a High Criminal Court was repealed by the Palestinian Legislative Council (PLC). While a high criminal court was not needed at the time, the Decree was in contravention to the Law on the Formation of Regular Courts. The Law by Decree No. 24 of 2017 and Law by Decree No. 9 of 2018 on the High Criminal Court were passed. Later, the Law by Decree No. 14 of 2019 on the Repealing of the Law by Decree No. 9 of 2018 on the High Criminal Court was enacted. Dr. Al-Ghusein explained that the Law by Decree on the High Criminal Court was met with strong opposition across the West Bank for several reasons. Most importantly, the formation of a high criminal court by a law by decree was in violation of the provisions of the Palestinian Basic Law, particularly Article 97 thereunder. The law by decree also contravened many fair trial guarantees, which should be provided to the accused under Palestinian national legislation and international conventions, which the State of Palestinian acceded to.

By a decision of the Chairman of the High Council of Justice (HCJ), in January 2022, a supreme criminal chamber was established in the Courts of First Instance in the Gaza Strip. The Supreme Criminal Chamber is competent of hearing crimes and serious offences committed in Gaza over the past few years. The chamber has jurisdiction over the crimes of murder, narcotic drugs (acquisition and trafficking), and corruption (civil servants). Affiliated with the Court of First Instance, formation of the newly established Supreme Criminal Chamber in Gaza was clearly and directly contrary to the provisions of Articles 10, 21, and 28 of the Law on the Formation of Regular Courts in force in the Gaza Strip. The Law does not give the HCJ any power or authority to establish a specialised supreme criminal chamber or panel in the Courts of First Instance nor any competence that falls under the civil or criminal jurisdiction of the Court of First Instance.

Dr. Al-Ghusein also reviewed the nature of rulings entered by the Supreme Criminal Chamber in the Gaza Strip. In a summary trial that lasted no more than a month and a half, by consensus, the chamber handed down several sentences to death by hanging. The fact these death sentences were made in a short span of time was disquieting. It raised concern over compliance with guarantees of fair trial and whether the accused had the legally prescribed terms to be able to defend themselves against the charges imputed to them. This is particularly the case when a penalty as serious as death punishment is rendered.

Many interventions and recommendations were made in the ensuing discussion. Most notably, the establishment of a supreme criminal chamber in the Gaza Strip requires that judges specialising in criminal justice be appointed. These will have relevant experience in substantive and procedural matters of national penal laws as well as in international conventions and treaties, which the State of Palestine acceded to. Such a requirement is now lacking, however. The State of Palestine must fulfil its international obligations and abolish the death penalty under the domestic Palestinian legislation. To this end, needed legislative amendments will be introduced without delay. 

The Health Rights of Gaza Patients and Patient Transfers

On Thursday, 21 April 2022, the Institute of Law (IoL) held a legal encounter on The Health Rights of Gaza Patients and Patient Transfers. Bringing together members of the legal community, academics, and interested persons, the presentation was made by Mr. Ala’ as-Skafi, Director of the Al-Dameer Association for Human Rights, and Dr. Osama Bal’awi, a health consultant.

In her opening statement, Ms. Lina al-Tounisi, Coordinator of the IoL Gaza Office, welcomed the speakers and audience and made a briefing note about the Birzeit Legal Encounters Programme. As-Skafi explained the definition of the concept of health in International Humanitarian Law and right to health under Palestinian laws. The Palestinian Basic Law does not address the right to health directly. Instead, Article 10 of the Basic Law provides for compliance with fundamental human rights and freedoms. Accordingly, the Palestinian Authority will work without delay to accede to international conventions and declarations, which provide protection to human rights. As-Skafi demonstrated that the Palestinian Public Health Law No. 20 of 2004 assigns a set of tasks to the Ministry of Health (MoH), particularly maternal and child care, control of diseases and pandemics, quarantine, hospital, and clinic services. However, the law does not address important aspects, including the provision of health insurance and issues relating to the older population and people with disabilities.

As-Skafi elaborated on the 2000 General Comment No. 14 of the Committee on Economic, Social and Cultural Rights. The interpretation of the right to health comprises interrelated and essential elements, namely, availability, accessibility, acceptability, and quality of health care services. Finally, As-Skafi stressed the continuing complexities and obstacles, which face patients, constitute a violation of the right to health, run counter to the principle of progressive realisation of the right to health under the International Covenant on Economic, Social and Cultural Rights, and contradict the Palestinian National Health Strategy 2017-2022.

In his presentation, Bal’awi addressed the concept of specialised treatment and department of service purchase (treatment outside MoH facilities). The MoH is committed to working jointly with all partners to scale up and improve performance, and ensure professional management, of the health sector. The Palestinian government has put in place the patient transfer system to make up for shortfalls at governmental health facilities as well as the lack of medical experience, devices, and equipment, including specialties of the medical profession and ability of medical facilities to accommodate patients. This way, gaps are bridged by the purchase of medical services from local health providers outside the MoH, including private, civil society, or charitable health institutions. Also, medical services can be purchased from other countries in case they are unavailable at local health centres.

Simple cases are transferred to local hospitals in the Gaza Strip as well as to national hospital, which require that patients cross the Beit Hanun (Erez) crossing point. These include the An-Najah hospital in Nablus and Al-Makassed and Augusta Victoria hospitals in Jerusalem. Patients whose treatment is not available in the Gaza Strip are transferred to hospitals inside the Green Line, including the Hadassah Ein Karem, Tel HaShomer hospitals, etc. Bal’awi made an overview of the total number of annual patient transfers. In 2019, patient transfers totalled 104,881. Representing a decrease of 23.7 percent, 80,020 patients were transferred to health centres outside MoH facilities in 2020.

Bal’awi indicated that the period required for the approval of a patient transfer application ranges from two to three weeks. In the meantime, an appointment is made, taking into account the availability of medical services or procedures. The cost of patient transfers is mostly covered by 100 percent. On the other hand, patients contribute 5 percent to the cost of other services. Patients and their families cover indirect costs, including companions, transportation, and accommodation.

Many interventions and recommendations were made in ensuing discussion. Most notably, an integrated set of health services needs to be provided, including medical specialties for which patient transfers are needed most, such as cancer, heart surgery, and cardiac catheterisation, at MoH or private hospitals. The Palestinian health system will be improved and capacity building provided to medical institutions. Qualified medical staff will be recruited to train physicians in the Gaza Strip. Medical teams will be dispatched on external missions for rehabilitation and then return to work at local hospitals.

The Reality of Working Women's Participation in Justice Facilities

On Wednesday, 18 May 2022, the Institute of Law (IoL) of Birzeit University held a legal encounter on The Reality of Working Women's Participation in Justice Facilities. Bringing together a number of lawyers, members of the legal community, and female police officers, the presentation was made by Dr. Mohammed Suleiman Shubeir, Associate Professor of Administrative Law at the Faculty of Law, Al-Azhar University.

In her opening remarks, Ms. Lina al-Tounisi, Coordinator of the IoL Gaza Office, welcomed the speaker and audience and made a briefing note about the Birzeit Legal Encounters Programme. Dr. Shubeir discussed the role and impact of female staff members of justice facilities in the Gaza Strip on maintaining the privacy of women when they listen and provide legal advice to these women. Dr. Shubeir stressed the importance and role of female lawyers in women’s access to justice.

Dr. Shubeir addressed three issues. Firstly, in relation to the reality of working women’s participation in police and security services, positive engagement with the cases of battered women requires the participation of women working in justice facilities of all kinds. This support starts with recruiting female police officers who could deal with women, both as complaints and defendants, ensuring their privacy, providing all comforts, giving confidence, and encouraging them to move forward to access justice. In this context, Dr. Shubeir highlighted that what was needed was not a women’s police force. Rather, the tasks and powers of the Family and Children Departments at police stations should be enhanced and promoted. He indicated that women’s representation in the police service was low.

Secondly, on women’s participation in the Public Prosecution, Dr. Shubeir showed that there were five or six female assistants to prosecutors. Compared to 75 male prosecutors, there is not a single female prosecutor. Female presence in the Public Prosecution is a key requirement for access to justice in gender based cases. This is a constitutional requirement, which has a positive bearing on women. The absence of female investigators, criminologists, and judicial officers will negatively impact female complainants and defendants. On the other hand, male investigators find it extremely difficult to understand women’s psychology. When they feel embarrassed in some cases, women’s psychological condition drives them to take a passive attitude without hesitation.

Thirdly, Dr. Shubeir explored the impact of women’s participation in the judiciary on women’s right to legal recourse and access to justice. There are only two female judges out of 70 judges in Gaza. Procedures for applications for judicial office have made it difficult for women to be appointed as judges. Women are absent from courts. Court proceedings are so critical as they culminate in decisive judgements, which put an end to disputes and cases. As a consequence, women are deprived of their rights in cases to which they are parties. Female judges may, therefore, provide a crucial factor to support women. Female judges have the skill of recognising body language as well as drawing statements and facts. Dr. Shubeir made clear that the very low presence of women in the justice sector components was attributed to the nature of the patriarchal society of Gaza and to the way advertisements for judicial posts are drafted. In addition to the religious nature of the community, the public have recourse to informal (tribal) judicial system in some cases in general, and in cases involving women in particular. This was one of the key reasons that cause women to refrain from applying for judicial posts at different legal facilities.

Many interventions and recommendations were made in ensuing discussion. Most importantly, the principle of women’s access to justice needs to be consolidated by putting in place mandatory constitutional provisions. Effective laws should be amended to preserve the rights of women, including complainants, addressees of complaints, litigants, and defendants. In addition to defending themselves as they desire, women will be enable to make statements in full freedom and without hesitation. To this avail, women will be strongly visible throughout justice sector facilities. In particular, when they defend themselves in certain cases, women need to be heard by fellow women in issues of privacy and gender.

Students, legal researchers explore impact of amendments on procedural law in Palestine

Students, legal researchers, and faculty members discussed the changes introduced by laws by decree on Palestinian procedural law in a symposium organized by Birzeit University’s Institute of Law on March 31, 2022.

The symosium, part of a series organized by the Institute of Law in the West Bank and Gaza, featured legal experts that included judge Fateh Hamarsheh, lawyers and previous judges Raed Asfour, and Daoud Darawi. The speakers focused on recent amendments on the procedural law, evidence, execution, penal acts, and the commercial and civil code.

Mohammed Alkhader, an academic researcher, chaired the session, emphasizing in his opening remarks the destabilizing effects that laws by decree have on court proceedings as well as the system of rights and duties in Palestine.

Hamarsheh, who began the discussion, highlighted the consequences of amending procedural law through laws by decree, arguing that such amendments have an adverse impact on enforcing rights and the rule of law in Palestine. As an example, he discussed the 2022 amendments of the Code of Civil and Commercial Procedure No. 2 of 2001, arguing that such changes as the electronic serving of legal notices or changing the purview of conciliation courts undermine the guarantees to a fair trial and impede the swift administration of justice.

Along similar lines, Raed Asfour discussed the 2022 amendments to the   2005 Law of Execution, noting that they were redrafted from the Jordanian execution law without regard to their relevance to the 2005 execution law or  the Palestinian context. Among the more problematic effects of these amendments, Asfour noted, were that enforcement judges no longer handle substantive disputes and an apparent contradiction in how defendants can appeal verdicts ruled in absentia.

Daoud Darawi, the final speaker in the session, criticized the amendments to the 2001 Penal Procedure Law, noting that they’ve hampered the protection of human rights in Palestine. The amendments, Darawi explained, severely restrict how and in what form suits can be brought against public officials, requiring the written approval of the prosecutor general.

At the end of the legal encounter, the speakers gave the floor to attendees for questions, and a group discussion was held regarding how best to address the shortcomings of the law-by-decree amendments.