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The “Kafkaesque” Trial: Update on the Case before the Israeli High Court of Justice Regarding the Travel Restrictions Imposed on Al-Haq’s General Director
REF.: 17.2008E
13، Jul 2008

The Israeli High Court of Justice today heard the latest petition brought by the General Director of Al-Haq, Mr. Shawan Jabarin, against the Commander of the Israeli military forces in the West Bank. The petition sought to overturn the travel ban imposed on Mr. Jabarin by the Israeli military authorities, in order for him to be able to leave the West Bank to attend a number of international conferences and seminars, including an event to which he was invited by the Office of the UN High Commissioner for Human Rights.

Mr. Jabarin’s lawyer, Advocate Michael Sfard, demonstrated that the restrictions on Mr. Jabarin’s freedom of movement, and, by extension, freedom of expression, violate international humanitarian and human rights law, as well as Israeli constitutional law. Adv. Sfard emphasised Mr. Jabarin’s status as a prominent and conscientious defender of human rights, and the fact that he and his organisation are well known and respected by leading Israeli and international human rights organisations, with whom they enjoy a close working relationship. The importance of the case to the public interest was also stressed, relevant as it is not just to Mr. Jabarin as an individual, but to the human rights of the Palestinian population as a whole, and to the integrity of the Israeli legal system.

The entire case against Mr. Jabarin is based on secret “evidence” provided by the Israeli General Security Service (GSS) which allegedly demonstrates that Mr. Jabarin has been and continues to be an active member of a political organisation designated as illegal by Israel. This material was examined ex parte by the judges, with Mr. Jabarin’s lawyer denied any access to it, and thus any opportunity to respond to the allegations against his client. When asked by Adv. Sfard what the Dutch diplomatic representatives, present at the hearing, would think of the use of such a procedure in a supposedly democratic system, the judges merely replied that they had read the secret material provided to them and would make the “right decision.”

Adv. Sfard invoked the precedent set by the UK House of Lords in its October 2007 judgment in Secretary of State for the Home Department v. MB, 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. 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] one of altogether too great importance to be sacrificed on the altar of terrorism control.”

This judgment was handed down during the period that has passed since the previous decision of the Israeli High Court of Justice, in June 2007, in which Mr. Jabarin was described as a “Dr. Jekyll and Mr. Hyde” type character: human rights defender by day, activist for a “terrorist” organisation by night. Adv. Sfard had opened his pleadings by quoting the opening line of Franz Kafka’s The Trial: “Someone must have slandered Josef K., for one morning without having done anything truly wrong, he was arrested.” The argument followed that 20 years ago, someone slandered Mr. Jabarin, and he continues to be punished for this by the Israeli authorities, who have produced no evidence to support their claims. The implications of this reference to The Trial are powerful, illustrating that the case at hand is primarily defined not by any “Jekyll and Hyde” type characteristics of the petitioner, but rather by the tendentious procedural nature of the hearing itself. The words of one commentator on The Trial are particularly pertinent: “Lack of evidence is treated as a pesky inconvenience, to be circumvented by such Kafkaesque means as depositing unproven allegations into sealed files.”

Although clearly reluctant to challenge the alleged evidence presented by the GSS, the judges did at one point admit that there can be no progressive dialogue in this case as long as one side is denied access to the material. Nonetheless, they refrained from taking any steps that would redress such a disparity, instead deciding that they will pose further questions behind closed doors to the GSS on the basis of the secret material. They will then issue their decision, likely within a number of days.

Al-Haq would like to express its most sincere thanks to Adv. Michael Sfard and to all who attended today’s hearing, particularly the representatives of the Dutch embassy, whose ongoing efforts on this case demonstrate an encouraging commitment to the values of human rights and to the protection of human rights defenders. Al-Haq is also extremely grateful to the Alternative Information Centre (AIC) who provided informal translation at the hearing, and to those organisations who continue to campaign and intervene on Mr. Jabarin’s behalf, including the International Commission of Jurists, Amnesty International, Human Rights Watch, the Fédération Internationale des ligues de Droits de l’Homme (FIDH), the Organisation Mondiale Contre la Torture (OMCT), the Observatory for the Protection of Human Rights Defenders, as well as numerous Palestinian and Israeli human rights organisations.

Al-Haq will continue to keep you informed of any further developments in the case. Please do not hesitate to contact haq (a) should you have any questions, comments or require further information pertaining to the case.

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