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According to a Justice Ministry official, all of the Hamas leaders who are eventually indicted, including those arrested in east Jerusalem, will be put on trial in a West Bank military court.
A Justice Ministry official explained that although those of the detainees who live in Jerusalem are in principle subject to Israeli law and judicial procedures, they may be tried in the West Bank according to the principle of "greater linkage." In other words, the focus of activity regarding the crimes of which they are suspected are more connected to the West Bank than to Israel.
The arrest and detention procedures that apply to the detainees are based on Military Order 378 Relating to Security Instructions, a catch-all piece of legislation enacted by the West Bank military commander, which deals with criminal procedures, arrests and military court laws.
According to the order, security forces may hold a suspect for eight days before bringing him before a military judge, should the authorities want to extend the remand. Furthermore, a detainee may be prohibited from consulting a lawyer for up to 90 days according to a four-tier military court procedure at the end of 15, 30 and 60 days. The detainee may appeal the decision to prevent him from seeing a lawyer to the Supreme Court.
However, a human rights lawyer who spoke on condition of anonymity said it was rare for the court to intervene in military decisions of this nature.
According to a Foreign Ministry statement, the detainees "are suspected of criminal offenses such as membership or activities in a terrorist organization, membership in the leadership of a terrorist organization and other possible offenses that constitute a violation of the law according to the Ordinance for the Prevention of Terrorism."
According to this law, passed in 1948, "a person who fulfills a leadership or training role in a terrorist organization, or participates in the deliberations or decision-making process of a terrorist organization, or serves as a member of the court of a terrorist organization, or makes a propaganda speech at a public meeting or radio broadcast on behalf of a terrorist organization will be accused of a crime and if found guilty, be sentenced to up to 20 years in prison."
Membership in a terrorist organization carries a punishment of up to five years in jail, while anyone expressing praise or support or encouragement for acts of violence can be sentenced to up to three years in jail.
According to University of Haifa law professor Ariel Ben-Dor, the arrests are perfectly legal. "Membership in an organization which has been declared a terrorist organization, and Hamas has been declared so, is a crime," Ben-Dor told Israel Radio.
He added that the suspects will be dealt with according to standard criminal procedure whereby "they have been arrested, they are being held in a facility, they may be interrogated and they must be brought before a judge to be remanded in custody."
According to Ben-Dor, there is nothing in international law which prevents the government from arresting the suspects. "According to the principles not only of Israeli law but also international law, if indeed we are talking about detainees who are all activists in Hamas, which is a terrorist organization, there should not be any real legal problem."
Haifa law professor Emmanuel Gross told The Jerusalem Post that although the Vienna Convention grants immunity to state officials, the Palestinian Authority is not a state and therefore the convention does not apply.
As far as domestic law is concerned, there are several laws, including the Ordinance for the Prevention of Terrorism and the 1945 Defense Emergency Regulations, which could apply to the detainees and, therefore, the arrests are legal.
If there is any legal question at all at this point, it appears to be whether or not the government is justified in holding the east Jerusalem residents in the West Bank and trying them, if it decides to indict them, in a West Bank military court.