Minutes of Meeting of the Plenary with the Prisoners; Culture of Peace and Legal Committees
May 20, 2008 [2:30 PM-4:30 PM], Inbal Hotel, West Jerusalem
Ahmed Querei (AA)
Saeb Erekat (SE)
Hisham Abd el Razek (HAR)
Sofyan Abu Zaydeh (SAZ)
Hiba Husseni (HH)
Salah elAyan (SA)
Azem Bishara (AB)
Zeinah Salahi (ZS)
Tzipi Livni (TL)
Tal Becker (TB)
Mike Blass (MB)
Daniel Taoub (DT)
Kamil Abu Rokin (KAR)
AA: How was your meeting with President Mubarak?
TL: It was fine. It’s been a while since we met last. We are speaking the same language. I suggest that after our meeting with the heads we stay together in order to see what’s agreed, what’s not, what’s outstanding.
AA: OK, that would be fine.
SE: I suggest that we start with Hisham on prisoners. He will present in Hebrew.
SAZ: I’ll translate to Arabic.
HAR: We know that in the prisoners committee we need to talk about what will be included in the agreement and about the day after. On this issue we are aware of the existing dilemma and that taking the required decision now is problematic when all other issues remain open and are being discussed. The Israeli position is that it’s not possible to agree now on [release of] prisoners unless we make progress on all other issues because that may give a green light for anyone who is thinking of taking an action to take such an action knowing that he will be released. We have a problem in this issue and know that it will be hard to make progress on it in the agreement unless we reach a general agreement on the other issues. That’s why in the committee we raised two other issues: 1. Living conditions of prisoners; and 2. How to create an atmosphere where the peace process is [regarded] vital and positive by discussing gradual release of prisoners during negotiations.
The answer we received from your side is that your team does not have a mandate to discuss these two issues. If there is an understanding that these two issues are vital then this requires a change in the Israeli official position. There must be a different approach to the issue of prisoners. Not from the view point of the bereaved families. During negotiations towards a permanent status agreement improving the living conditions and gradual release of prisoners are vital and required to strengthen Abu Mazen and give the feeling that there is a utility for the process.
You know that today or tomorrow Shalit’s issue will come up and you will have to release prisoners in exchange. This will give Hamas a push forward. Either both sides look at their mutual interest or either side looks at his [own] interests. We need to reach an agreement on what serves our mutual interests. In a week, two or a month you will release prisoners to Hamas in exchange of Shalit. What will this bring you? It will strengthen Hamas and not Abu Mazen. It will send the message that violence works. There are prisoners that have been sitting in prison for more than 20 years. They did most of their time and the Israeli public does not care much about them. Hamas will release them and not the peace process?
TL: May I ask a specific question relating to your last comment. When you spoke I was also thinking about Shalit and I have no doubt that Hamas will gain strength out of it. On the other hand we have a commitment towards him. You know the Israeli society perceptions about this. My question is whether there is a way, in your opinion, to strengthen the PA also and not Hamas in the issue of Shalit?
HAR: Yes I think that there is such an option. It lies in opening a direct channel for discussion on the living conditions of prisoners and releasing prisoners. How many will you release for Shalit, 10% at most.
TL: How many do we have now?
HAR: Thousands. More than 10,000. So improving conditions of life will strengthen the PA in addition to the release of prisoners with an emphasis on prisoners that have been serving many years in prison. These prisoners do not pose a problem in Israel.
TL: From before Oslo?
HAR: Even before Oslo in many years, more than 20.
TL: I would like to say few things, and then we can continue. Basically the mandate of the committees is to discuss the day after. We also agreed – the issue of prisoners was raised even before Annapolis and you, Abu Ala and Abu Mazen said it's needed due to the importance of the issue to Palestinian society and in order to show support in the peace process. Clearly the two issues you raised are not within the mandate of the committee but maybe we can think a different way about this [issue]; we can link them to it. First, there is the day after. You should discuss conditions, benchmarks and parameters for release and timing [notes possible timing for release as part of the agreement including the day of its signing, the declaration of state, etc.]. Meanwhile the Minster in charge of conditions is Avi Dechter. We will have to check with him the problems regarding the conditions in prisons, if there are problems at all.
MB: Around 10 issues were raised in the committee and we did a check. They provided me with reasoning and explanations to the issues.
SAZ: You could have come to me. I can give you the explanations.
TL: I’m thinking out loud here. Maybe we can connect release to benchmarks, release in exchange to Palestinians doing something on the ground. This will help make the link. On the Israeli side we have a similar problem with our public. Terror continues while we are negotiating and people ask why do you negotiate and release prisoners in spite of that. It is not in my mandate, but maybe there are benchmarks related to what’s happening on the ground that can be a condition for release. Strengthening Abu Mazen is not an excuse, to what is related on the ground.
AA: We need to put this issue on the top of our priorities. I suggest that this committee discusses the two sides – one side is the day after and the [other is the] timing of release.
TL: This is less important.
AA: The committee has to discuss the day after. [Regardless of how many people are in the prisons, the experts should discuss how to deal with them/release.] We need them also to learn about and discuss the conditions in prisons. The committee can check the possibilities for improving conditions; and also, the release. I can’t understand that there are prisoners from before Oslo or that you release to Hamas and not to your partners. It’s an insult to the peace process where if, kidnapping Shalit and force [are rewarded but] you do not release prisoners for the peace process. This is the wrong message to send.
They can discuss at the committee the conditions, release from now until an agreement is reached and with and after the agreement. I suggest that they also start drafting or put an I and P document.
TL: I think drafting something that will be part of the agreement itself -- Mike, you can start talking about the day after. Parameters, timing…etc.
MB: We started talking about this – who we are talking about. I thought we are talking about Palestinian prisoners. Hisham explained that they also want to include other prisoners.
TL: When Hizballah asks for Palestinian prisoners we tell them this is none of your business.
AA: Put your position. We are not talking about Hizballah prisoners but about all those who joined our cause and organizations.
MB: They do not include Hizballah but whoever joined and fought with their organizations.
TL: [to MK in Hebrew] Like Japanese?
MB: [to TL in Hebrew] They also include Israeli citizens.
TL: I suggest that you start working on parameters. Not names or lists.
SE: I have a question to ask. People like to see tangibles, whether Palestinian or Israeli. When you speak about benchmarks for release, what do you have in mind?
TL: I did not think about it yet. Start talking about parameters, what’s acceptable and what’s not. Don’t accept everything they ask for Mike. I am talking about the day after now. A timeline for release, parameters…etc.
HAR: The day after is the easiest part, believe me.
MB: [Not so easy because you have the group who commits attacks after the negotiations start but before the signing.] There will be a big gap since we want to distinguish between people who acted before, during and after the peace process.
TL: You can talk about prisoners from before Oslo and after, before Annapolis and after for example.
TB: There are two issues, categories and timeline.
TL: Now I have to ask the Ministry of Internal Security to see if there is something that can be done on conditions. [Creating] another committee now is not a going to work from the Israeli side as there is no willingness to discuss this issue now. I do not think another committee is needed. Discussing these issues in this committee will help us to connect it to negotiations. So raise the issue of conditions in prisons and talk about how it can be linked to benchmarks like law enforcement and fighting terror by the PA.
MB: In the first meeting the issue of what should be given in return was raised and Hisham mentioned a plan that he worked on with Israelis, cease fire in return to release. In the second meeting the position was release in order to strengthen Abu Mazen.
TL: Mike, if you look at the atmosphere in the West Bank there is an atmosphere of change; it is not dramatic but there are steps being taken that can be seen in Israel. Of course we are never satisfied. This is part of our DNA but my sense is that there are changes on the ground that can be taken into account.
TL: Yes for example.
AA: Talk about it openly.
SE: This is regarding release. As for conditions in prison there are international standards that you should uphold as a state with rule of law. Prisoners are paying with their lives and time day by day. Do not bargain with me on their basic rights. It’s up to your government how to deal with this.
TL: You put it on the table.
SE: Because of what’s going on in prisons and the deteriorating conditions. This should not be up for bargaining.
TL: Well there is no union for the prisoners, someone have to raise it.
AA: We are not here now to discuss it. We want to facilitate their work. Put an agenda for the day after and one for now.
TL: I will check the issue of change on the ground with the army.
MB: Saeb said he has ideas. Let him come with his ideas.
AA: We are interested in your ideas not Saeb’s.
TL: I haven’t thought about it. I need ideas to work with.
SE: Ok, I’ll discuss with Hisham.
TL: Ok, who is next? Legal?
SE: Hiba would like to go last. Let’s talk about culture of peace. First thing I want to say is that we have clearance from our side, Abu Mazen and Abu Ala, to go on the joint visit to Northern Ireland.
TL: Very well. It’s good to learn from other people. Who would like to start?
SAZ: I’ll start. We do not have major differences in this committee. The focus is on the day after. We have a list of issues: education, media and incitement.
TL: What’s incitement? Isn’t part of education and media?
SAZ: Education is mainly about text books.
DT: Incitement is really about enforcement regarding incitement, so we mean the implementation.
SAZ: In the last meeting we talked about how to check textbooks. We know that from Israel’s side there are many complaints resulting from a perception based on ignorance. We need to think about what changes; we need to make the day after we reach an agreement and what mechanism is required for monitoring. Daniel?
TL: The question is if we can conclude anything today.
DT: We may need to look at other areas before. After we conclude this, then we can tackle other areas of potential cooperation [technology, sports, science, etc.]. We need to think how to move forward on education. Maybe bring international experts to advise us how to move forward on this issue and the methodology to be used. Looking at models and standards like UNESCO etc. and how to monitor. We are at a stage where we are ready to draft. It’s time to start thinking about what kind of paragraph should be included in an agreement.
SE: When are you going to Northern Ireland? Let’s talk after that. It’s better since you would have learnt about their experience.
TB: We can meet to draft as soon as possible. Before the trip and also after.
TL: You are going to draft about the day after. But if there are things to do today to prepare the people for peace start talking about what can be done from now.
AA: My impression is that they understand each other well. Let them meet and talk.
SE: We need a way to approach the Irish.
TB: The two of you, DT and SAZ, should approach them jointly. We should keep it low key.
AA: Start drafting and see what the gaps are. To talk without drafting is not good for making progress.
DT: There are things that we can continue to work on in parallel and in addition to drafting. Incitement etc... We could have more meetings to discuss.
TB: That’s fine. Meet again but let’s also set a meeting to start drafting.
SE: Ok, let’s move to legal.
HH: Go ahead Mike, you can start first.
MB: We have had 4 meetings so far to discuss issues of jurisdiction – criminal law jurisdiction, civil law jurisdiction, and learn about Palestinian law and system.
TL: Out of interest, what system is Palestinian law based on?
HH: Jordanian and Ottoman, common law and civil law, it’s a mix.
TL: Egyptian in Gaza and Jordanian in the West Bank?
HH: It started as Ottoman and British in both, then continued Ottoman in Gaza and Jordanian in the West Bank, and then some laws were harmonized by the Palestinian Legislative Council. There are 96 laws at the PLC, national laws. Newer areas are easier – securities, taxation, while land registration and property are more complicated.
TL: So there are laws that only apply in Gaza?
HH: To the extent that there is no harmonization of laws. Harmonizing the laws is a very complex project and takes years.
TL: Also in Israel we still have Ottoman laws, the land law for example.
MB: In Israel harmonization only took 30 years.
TL: [In Hebrew] Maybe we can give them Barak as an expert on codification. Not Ehud but Aharon. He will be happy, no?
MB: One thing was to learn about the Palestinian laws and the other is to see how are they being implemented on the ground.
TL: Excuse me, it might be interesting to learn about this, but how is it relevant to what we are discussing here.
AA: For one state we need one law, don’t we?
TL: It’s also a problem on how it impacts our agreement. Maybe we will go back to the Mandatory laws. We already have the high commissioner back. Tony Blair is not about capacity building, but how to bring back the British Mandate. He is not sitting at the King David, but the American Colony.
MB: The reason I wanted to learn more is because there will be changes. We will be moving from a situation under which they do not have authority over Israelis to one in which they will have authority and jurisdiction over Israelis, although they may have limitations. We need to see how will that come about and work.
AA: We are talking about the day after.
MB: But we are coming from a situation that will change in order to reach the day after.
TL: For example?
MB: A Palestinian police arresting an Israeli citizen.
AA: Of course.
MB: What law would apply.
HH: Arrest, detention, and having a lawyer.
MB: I was a student. I wanted to see if the system is functioning. Last meeting I read an agenda modeled on the interim agreement. In the next meeting we will hear their agenda and comments on our agenda. They provided some comments already, for example on jurisdiction their position is that over all the territory they want to have Palestinian jurisdiction.
TL: Do we have a problem with that?
MB: We want to discuss and see. I raised the issue of soldiers and gave the example of U.S soldiers present in Israel.
AA: What soldiers?
TL: Maybe he is referring to the international forces you want Abu Ala. Mike, this is not for legal now. Let’s put it this way - in case something is agreed then its legal aspects might be discussed also in Legal.
AA: This will make problems for you. Do not go into these details. Two states with jurisdiction will make an agreement. Concentrate on cooperation and in general what kind of arrangements. We do not need these exceptions. This is part of an interim agreement.
TL: Let us hear the whole list and see if there is a problem. Let us focus on the other issues on the list and maybe they can give an answer. Also, there may be decisions we have to make that we need legal analysis for.
AA: We need to talk about arbitration in this committee. If there are any disputes…
MB: I suggested a list. I took the interim agreement and looked at the headings there.
AA: Do not be guided by that. It’s an interim agreement.
MB: What I said is if there are categories of Israelis coming to Palestine, will their status be like an Israeli going to Finland or there will be special arrangements because we are so close. Maybe these issues will be resolved elsewhere, but it’s a flag that I have to raise. If there are Israeli technicians providing services for electricity or infrastructure.
TL: In infrastructure they did not make progress yet. Who will provide electricity and maintain the lines and other infrastructures.
AA: We will take all of these furnished.
TB: The question is if there are Israelis operating under the power of the agreement. If we agree a joint patrols or on electricity provision or technicians what will be the legal impact.
SE: Let us hear the whole list.
MB: Another category is Israelis driving in a special [pre]-designated road in Palestine and he has an accident. What will we do? Who will handle it.
AA: We will arrest them.
TL: And then exchange them for prisoners.
MB: Another issue is holy places like Nablus.
AA: How is that an issue?
MB: We raised without detail. If it will be a special regime, or like other visitors.
AA: When we talk about [Holy Places] we will raise it in there. Not in legal.
MB: There is a small legal aspect.
TL: Basically, what you’ve raised are things that will be addressed by you [legal committee], and at the other committees.
MB: We will also have to talk about the transitional period. I do not know how long it is. Another issue is legal assistance in criminal matters. We should create the mechanism. Right now it’s broken and does not work. We explained our frustration with the mechanism on their side and they did as well on our side. We want an address with authority on both sides, a hot line, [someone with responsibility].
In terms of civil jurisdiction, now there are limitations. Palestinians cannot sue in Israeli courts. Obviously there will be changes, but maybe there are also issues to be addressed, for example who will have jurisdiction over electricity.
TL: It’s part of infrastructure.
MB: We will have to see. There is a legal aspect. There is also cooperation in civil issues. Also the issue of kidnapped children. I also raised the issue of a general provision not to legislate in violation of the agreement. There is also transfer of cases in areas C.
TL: As a lawyer, two issues come to mind., with regards to Israelis in the West Bank.
AA: Settlers you mean.
TL: Yes the settlers. I am thinking whether a Palestinian wants to bring charges against a settler.
MB: Civil you mean.
TL: Yes civil claims. We need to address that. The other issue is elections. We need to prevent armed militias from reaching power through elections. This is a shared concern for both of us. It was in the interim agreement and was overlooked.
SE: This is not legal. It is a plenary issue.
AA: They can think about it.
TL: If you say it’s a plenary issue then we can discuss it at the plenary.
HH: Mike summarized the criminal jurisdiction issue. I would like to clarify. Jurisdiction took a lot of our time. Things have been clarified but we are not done yet. For us jurisdiction is clear. Palestine will have full personal, territorial, etc. jurisdiction over its territory, its people and third parties [present] in its territory. The discussion then focused on certain categories. The ones Mike mentioned. The question is to what extent we can consider these categories. There are international standards and norms. If the political level so decides, we can discuss. But any exception has to be on a reciprocal basis. This is with respect to jurisdiction in general. When we divide between criminal and civil jurisdiction then it becomes more complex regarding criminal issues. I think that we reached an understanding that Israelis present in Palestine of their free will do not fall into any of the categories of exceptions. Palestinian jurisdiction applies to them and vice versa. These people avail themselves to Palestinian jurisdiction. It’s not part of arrangements on a state to state level. In civil issues it is simpler as there is no detention, arrest, search, investigation…etc
Another issue is mutual legal assistance. The problem here is with implementation. Both sides said that they had many requests that the other side was not dealing with.
TL: So we need to discuss what’s needed now.
HH: The failure of legal assistance mechanism has affected daily [activities like] business where Israeli request cash payment only. This is so because Israelis, for example, do turn to the legal system for addressing debts. We also discussed infiltrators.
TL: We now have a new law on people from Africa.
MB: It’s a draft law.
HH: We generally discussed the issue. Not the terms of agreement or wording for drafting. Another issue is a transitional issue – from Area C.
TL It looks like a miracle that something works with the complicated situation now.
HH: We also discussed child abduction but we are not there yet. There is also the issue of family reunification which we discussed in the meeting with SE and UD, but not tabled as an issue for Legal yet.
TL: This should be a plenary issue.
SE: I asked Hiba not raise it.
HH: I withdraw this issue. There is also dispute resolution.
MB: There was no decision on where it will be discussed.
TL: We have to distinguish between conflict resolution.
AA: Dispute resolution.
TL: Yes, dispute resolution for claims, all claims.
HH: Next meeting we will react to your list and present our comprehensive list. We are supposed to respond in writing to some issues on criminal jurisdiction as well, and will get to that.
TL: I think that we should make two different lists. What is pure legal and what is not. Some issues are a matter of policy, for example conflict resolution regarding the implementation of the agreement. It was raised before and they will raise it again. We can use your help but we have to discuss it in the plenary. Another issue is terrorist organizations and a way to make democracy work in a way that is in our mutual interest [i.e. participation in elections], it’s for the plenary. My interest is not in the thieves and how the penal law treats them. I would also like to know what the Palestinian system does on counter terrorism and anti-money laundering. In security we will be discussing arms and capabilities but I would like to know what laws and courts you have. Maybe you [to Hiba] can discuss it with Mike so he can see what’s there [in your laws]. If it works then it works and doesn’t need to be addressed.
MB: What I understood is that this is the Jordanian law from 1966. Not likely to be treated in the penal law.
HH: We have been cooperating and there is a high level of exchanging information and will continue to exchange information. For example, we mentioned that we have a law on anti-money laundering.
TL: I don’t know what legislation you have on combating terrorism, I would like to know. This relates to our mutual interest. To ensure that the Palestinian state is not subject to abuse in both the Gaza Strip and West Bank. For us we deal with Gaza and West Bank as one.
TB: At the clearly legal issues, mutual legal assistance and general jurisdiction, there seems to be an agreement. Other categories are subject to discussions in the other committees.
HH: There are two points I forgot to mention. One issue which we tabled but that was not discussed fully is extradition. There are also property rights in the swapped areas.
TL: Yes, jurisdiction. But the other is related to the issue I raised on settlers and their claims and the ability to bring cases against them.
There are issues which are a matter of policy that we need to address. We will have an internal meeting to discuss them as will you, I am sure. In the meanwhile you can continue in the committee to discuss issues. The idea when we reach an agreement is to close the conflict not open new conflicts.
AA: Clearly there are great efforts being put into all three committees. On legal they can continue to discuss the areas of agreement. All issues are open and clear. I suggest that they start working on an agreed agenda on a reciprocal basis. It will be the basis later for an agreement. Deal with the issues to the extent they are constructive.