Can Palestinian Authority Request the Transfer of Israelis?

Recently a number of Israeli commentators have defended the Palestinian Authority’s (PA) refusal to transfer terrorists to Israel by claiming that this is acceptable behavior since Israel does not extradite Israelis to the PA. This argument, however, ignores the irrefutable fact that the PA has no authority to request the transfer of Israeli suspects.

According the Interim Agreement, Israel has sole criminal jurisdiction over offenses committed by Israelis and the PA can only request the transfer of non-Israelis. As for civil cases against Israelis which fall within the PA’s jurisdiction, PA imprisonment orders against Israelis are effected by the Israeli police so they serve their punishment in Israeli rather than Palestinian prison.

The relevant sections of the Interim Agreement are presented below:

Annex IV Protocol Concerning Legal Matters

ARTICLE I Criminal Jurisdiction

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2. Israel has sole criminal jurisdiction over the following offenses:

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b. offenses committed in the Territory by Israelis.

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ARTICLE II Legal Assistance in Criminal Matters

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2. Cooperation in Criminal Matters

… b. Where an offense is committed in the Territory by an Israeli acting jointly with an individual under Palestinian personal jurisdiction, the Israeli military forces and the Palestinian Police will cooperate in conducting an investigation.

c. The Palestinian authorities shall not arrest Israelis or place them in custody. Israelis can identify themselves by presenting Israeli documentation.

However, when an Israeli commits a crime against a person or property in the Territory, the Palestinian Police, upon arrival at the scene of the offense shall, if necessary, until the arrival of the Israeli military forces, detain the suspect in place while ensuring his protection and the protection of those involved, prevent interference with the scene of the offense, collect the necessary evidence and conduct preliminary questioning, and in any case shall immediately notify the Israeli authorities through the relevant DCO.

d. Without derogating from the jurisdiction of the Council over property located or transported within the Territory, where the property is being transported or carried by an Israeli, the following procedure shall apply: The Palestinian authorities have the power to take any measures necessary in relation to Israeli vehicles or property where such vehicle or property has been used in the commission of a crime and present an immediate danger to public safety or health. When such measures are taken, the Palestinian authorities shall immediately notify the Israeli authorities through the relevant DCO, and shall continue to take the necessary measures until their arrival.

3. When an Israeli is suspected of committing an offense and is present in the Territory, the Israeli military forces shall be able to arrest, search and detain the suspect as required; in areas where the Palestinian Police exercise powers and responsibilities for internal security and public order, such activities shall take place in coordination with the Palestinian Police, in its presence and with its assistance.

4. Israel shall hand over to the Palestinian Police the Palestinian offenders to whom Article I, paragraph 1.b applies, together with any collected evidence.

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6. Summons and Questioning of Witnesses

a. Where the statement of a witness who is an Israeli or other person present in Israel is required for a Palestinian investigation, the statement shall be taken by the Israeli Police in the presence of a Palestinian Police officer in an Israeli facility at an agreed location.

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7. Transfer of Suspects and Defendants

a. Where a non-Israeli suspected of, charged with, or convicted of, an offense that falls within Palestinian criminal jurisdiction is present in Israel, the Council may request Israel to arrest and transfer the individual to the Council.

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ARTICLE III Civil Jurisdiction

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4. Israelis, including registered companies of Israelis, conducting commercial activity in the Territory are subject to the prevailing civil law in the Territory relating to that activity. Enforcement of judicial and administrative judgments and orders issued against Israelis and their property shall be effected by Israel, within a reasonable time, in coordination and cooperation with the Council.

ARTICLE IV Legal Assistance in Civil Matters

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3. Enforcement of Judgments

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c. Without derogating from the civil jurisdiction of the Palestinian courts and judicial authorities in accordance with Article III, imprisonment orders against Israelis, and orders restraining Israelis from traveling abroad (excluding interim orders before a judgment was given), shall only be issued by Israeli execution offices and effected by the Israeli police.

Dr. Aaron Lerner,
Director IMRA (Independent Media Review & Analysis)
P.O.BOX 982 Kfar Sava
Tel: (+972-9) 760-4719
Fax: (+972-9) 741-1645
imra@netvision.net.il