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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