The Israeli High Court of Justice has upheld an ongoing travel ban on Shawan Jabarin, General Director of the Palestinian human rights organization Al-Haq based solely on 'secret evidence' that the Israeli authorities refuse to show to the defendent or the public to substantiate their claims.
The Israeli High Court of Justice (HCJ)
has issued its decision in the case brought by the General Director of Al-Haq,
Mr. Shawan Jabarin, against the Commander of the Israeli military forces in the
West Bank. Mr. Jabarin was challenging the arbitrary, indefinite and
unconditional travel ban imposed on him by the Israeli military authorities,
which prevents him from leaving the West Bank.
Having heard the arguments and reviewed
the evidence presented to it on 3 July 2008, the judgment issued on 7 July by
the highest judicial body in Israel amounted to three paragraphs. A translation
of the decision is available here. The first two paragraphs comprise a very brief, superficial review of the facts
before the Court. The third paragraph, despite acknowledging the “ambiguity”
surrounding the Israeli military authorities’ motives, and despite
acknowledging the frustration of Mr. Jabarin’s lawyer at being prevented from
responding to alleged evidence as he is not privy to such “evidence,” swiftly
rejects the petition on the basis of that secret evidence.
According to the Court, the secret
evidence shows that Mr. Jabarin is an active member of a “terrorist”
organisation. Further factual details, as well as legal reasoning of any kind,
were considered by the Court to be superfluous to the judgment.
The secret evidence procedure adopted by
the HCJ in this and other cases raises serious questions about basic due
process principles and fair trial standards in Israel. Indeed, the use of
secret evidence has long been challenged in the jurisprudence of modern
democracies as inimical to the pursuit of justice. In 1950, renowned US Supreme
Court Justice Robert H. Jackson adjudged that “[t]he plea that evidence of
guilt must be secret is abhorrent to free men” (U.S. ex rel. Knauff v.
Shaughnessy (1950) 338 U.S. 537, 551). A later decision of a US Federal Appeals
Court is particularly relevant to the case of Mr. Jabarin, holding that the
defendant,
“like
Joseph K. in Kafka's 'The Trial', can prevail ... only if he can rebut the
undisclosed evidence against him, i.e. prove that he is not a terrorist
regardless of what might be implied by the government's confidential
information. It is difficult to imagine how even someone innocent of all
wrongdoing could meet such a burden?" (Rafeedie v. Immigration and
Naturalisation Service (D.C. Cir. 1989) 880 F.2d 506, 516).
Although the right of all persons to a
fair trial is guaranteed under international humanitarian and human rights law,
with General Comment No. 32 of the UN Human Rights Committee specifically
stating that parties must “be given the opportunity to contest all the
arguments and evidence adduced by the other party,” the use of secret evidence
has gained some support in recent years from the administrations of
increasingly repressive major powers in the so-called “global war on terror.”
It is in the context of this rhetoric that Israel has generally sought to
further dilute its legal obligations as an Occupying Power and to plead
legitimacy for its long-existing oppressive and unlawful practices against the
occupied Palestinian population, including through derogation from
internationally recognised fair trial standards. Regarding secret evidence,
however, a major blow to the legitimacy of its use in the context of the “war
on terror” was dealt by a landmark UK House of Lords judgment in October 2007,
where it was held that control orders based solely on secret evidence violate
the right to a fair trial, even when issues of national security are at stake
(Secretary of State for the Home Department v. MB (2007) UKHL 46). In this
regard, the words of Lord Brown are directly applicable to Mr. Jabarin’s
situation: “a suspect’s entitlement to an essentially fair hearing ... [is] not
merely an absolute right but one of altogether too great importance to be
sacrificed on the altar of terrorism control.”
Furthermore, the European Court of Human
Rights has also confirmed that “both [the] prosecution and defence must be
given the opportunity to have knowledge of and comment on the observations
filed and the evidence adduced by the other party ... prosecution authorities
[must] disclose to the defence all material evidence in their possession for or
against the accused” (V. v Finland, ECHR 40412/98, Judgment of 24 July 2007,
paragraph 74).
In light of such opinion from judicial
authorities as esteemed as the House of Lords and the European Court of Human
Rights, and indeed of the general incompatibility of Israeli procedures with
international legal standards regarding due process, Al-Haq will continue its
struggle for the realisation of Mr. Jabarin’s right to freedom of movement, by
pursuing alternative channels to the HCJ. Mr. Jabarin stated: “The Israeli High
Court has yet again exposed itself as merely a rubber-stamp for the decisions
of the army and intelligence services, rather than an independent branch of
government. Even the restrictive Israeli policies imposed upon me will not
weaken my belief in human rights nor avert my efforts in defending human rights
and in advocating against Israeli human rights violations and war crimes.”
In reaction to the decision, Mr.
Jabarin’s counsel, Adv. Michael Sfard, stated: “I have no doubt in my mind that
Shawan Jabarin is one of Palestine's most important human rights defenders. The
Kafkaesque procedure, in which Israel has violated Mr. Jabarin's freedoms, is
proof to me that Israel's security establishment is afraid to present the
alleged evidence they have collected, as they know it will expose the weakness
of their case against him. Mr. Jabarin has no choice but to take his case to
international fora.”
Al-Haq would like to express its sincere
thanks to the numerous Palestinian, Israeli and international organisations and
diplomatic representatives who continue to campaign and intervene on Mr.
Jabarin’s behalf. In particular, Al-Haq is extremely grateful to ICCO (the
Interchurch Organisation for Development Cooperation) and the representative of
its progressive initiative relating to human rights defenders, Mr. Chris
Collier, whose ongoing efforts on this and other cases demonstrate an
encouraging commitment to the values of human rights and to the protection of human
rights defenders.
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