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Hamas to try collaborators in military courts, claiming legality

Hamas, which controls the Gaza Strip, is seeking the formation of military field courts under a PLO law to try collaborators accused of spying for Israel during the latest escalation round between the two sides.
Members of Al-Qassam Brigades, the armed wing of the Palestinian Hamas movement, march in Gaza City on May 22, 2021, in commemoration of senior Hamas commander Bassem Issa who was killed along with other militants in Israeli airstrikes last week.

GAZA CITY, Gaza Strip — With each round of escalation in the Gaza Strip, the Palestinian resistance discovers secret agents cooperating with Israel.

The Arabic Post website revealed May 18 that the Security and Protection Unit affiliated with Hamas in Gaza hacked an Israeli intelligence computer and got the names of dozens of collaborators with Israel. It also arrested 43 people in Gaza on charges of spying for Israel. The Hamas-affiliated Shehab Agency news website had reported a day earlier that a number of informants surrendered themselves to the security unit.

Meanwhile, in the besieged enclave, news circulated about the start of trials of the collaborators at a military field court affiliated with the Palestinian Military Justice Commission and established in accordance with the PLO's Revolutionary Penal Law of 1979.

Article 133 of said law stipulates that any Palestinian who conspires with a foreign state or contacts it to incite aggression against the state or to provide the means for such aggression is punished with hard labor. The article specifies that the act is punishable by execution (death penalty) if it has repercussions. “Any Palestinian who conspires with the enemy or contacts it to collaborate with it by any means to achieve the victory over the state is punished by execution,” it adds.

Al-Monitor tried to get a comment from the media department of Izz ad-Din al-Qassam Brigades, Hamas’ military wing, on the trials before the military field court in Gaza, but to no avail. It also contacted several human rights organizations that refused to comment on the issue given its sensitivity, especially at a time when Gaza was under Israeli bombardment.

Israel and Hamas agreed to a cease-fire on May 20, ending an 11-day conflict that killed at least 230 Palestinians and 12 Israelis.

A well-informed source with the Palestinian resistance confirmed to Al-Monitor on condition of anonymity that no official decision has been issued to try collaborators with Israel before the military field court, denying reports about the start of the trials.

Mohammed Abd al-Wahhab, a field researcher at the Palestinian Center for Human Rights, told Al-Monitor that the PLO’s Revolutionary Penal Law of 1979 authorized trials before field military courts in special cases. The judges are senior officers who have experience in law, he noted, stressing that these courts are established to try members of the police or security only, not civilians.

Abd al-Wahhab explained, “The Revolutionary Penal Law made no distinction between civilians and military members when it comes to these special courts, but after the advent of the Palestinian Authority (PA) in 1994, it has become customary that field military courts are established for the prosecution of police and security members only.”

He further explained that the law sets conditions for allowing these trials, including the issuance of a decision by the supreme commander of the armed forces, which, in the Palestinian case is President Mahmoud Abbas. “Abbas cannot approve such trials [of citizens, given the international covenants on death penalty he signed]. Therefore any reports that trials of collaborators [in Gaza] are held according to the Revolutionary Penal Code are not true.”

Abd al-Wahhab noted that these courts are not supposed to issue their judgment within one or two days or to have predetermined judgments. Rather, they act as ordinary courts where all necessary procedures must be followed just like before regular courts. “The difference is that the execution of the judgment rendered by these courts is fast,” he said. “If the trials before these courts fail to meet the conditions that guarantee the right of defense and the necessary procedures to prove the charges against the defendant, then they would fall under arbitrary trials classified as war crimes.”

Abd al-Wahhab warned the authorities in Gaza against forming these military field courts in view of their legal controversy and consequences, especially since Palestine acceded to the Rome Statute of the International Criminal Court (ICC). By acceding to the ICC, all alleged war crimes and arbitrary trials occurring in the Palestinian territories are subject to the ICC’s jurisdiction. Holding trials for civilians in field military courts could subject Palestine to the ICC, and the latter could deem the ruling of a field court as a war crime, he explained.

“I hope such courts will not be formed. We do not want the leaders of the Palestinian factions to be pursued by the ICC,” he said.

Abd al-Wahhab said Gazan authorities are trying to circumvent the law by forming these military field courts in accordance with the Revolutionary Penal Law to try civilians under legal cover.

He pointed out that when those accused of collaborating with Israel and causing the killing of Hamas leader Mazen Fuqaha were tried in Gaza, authorities in the enclave claimed to have established the military field court in accordance with the PLO’s law. “But these courts were not legal as they should have been formed by a decision of the Palestinian president,” he said. “It is difficult to obtain statistics about the number of trials before the so-called military field courts approved by the authorities in Gaza.”

The authorities in Gaza had established a military field court in May 2017. Back then, the court sentenced to death three informants accused of spying for Israel who were found guilty of involvement in the murder of Fuqaha, the commander of al-Qassam Brigades, in March 2017. Also, in August 2014, after the war on Gaza ended, the military field court ordered the execution of more than 20 collaborators. This is in addition to the execution of a large number of collaborators during the 51-day war in 2014, without a trial.

Abd al-Wahhab pointed out that it is difficult to have any oversight over these courts. Hamas prevents human rights institutions from accessing the procedures for the establishment of these courts. “The death penalties issued by these courts are tantamount to killings outside the framework of the law (extrajudicial killings), whereby the act of killing is allegedly legalized based on the Revolutionary Penal Law.”

He continued, “When the authorities in Gaza want to discard the right of defense, they would invoke the military field courts and illegally activate them,” noting that the PLO law, by providing for such courts, is violating international standards that Palestine is bound by.

He pointed out that the Palestinian Center for Human Rights never received a complaint about the field execution of collaborators with Israel, as these cases are highly thorny. “The family of the executed are hesitant to speak or file a complaint, given the stigma that afflicts that family (that their son worked with Israel). Amidst the legal chaos in the Gaza Strip, trials of informants are subject to the judge’s whims and the pressure of public opinion,” he said.

He further argued that judges in the military field courts tend to believe the allegations of Hamas’ security forces. “The judiciary ought to exercise supervision over the work of the executive body [the security forces]. It must not admit that the allegations of the security forces are true and convict the accused while denying him the right of defense.”

In turn, Hussam al-Dujni, a political analyst and professor of political science at Umma University in Gaza, told Al-Monitor that during the latest escalation in Gaza, Israel was in a state of confusion, which explains its targeting of the infrastructure in Gaza as both the resistance and Israel sought to achieve a security breach.

Dujni concluded, “Israel tries to recruit agents by exploiting the needs of the residents of the Gaza Strip in light of the dire economic conditions. It is also seeking to exploit patients who travel through the Beit Hanoun crossing for treatment to pressure them to work for it in exchange for facilitating their entry into Israel.”

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