The Israeli High Court of Justice this morning heard the 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 time for him to be able to attend an international conference on peace and justice in Germany from 25 to 27 June 2007.
Mr. Jabarin’s lawyer, Advocate Michael Sfard, presented a two-pronged argument to the court. The first aspect was based on procedural rules; namely that the Israeli military authorities have not followed the fair and correct procedure in imposing what is essentially an unlimited and unconditional prohibition on Mr. Jabarin leaving the West Bank. Adv. Sfard argued that if the military authorities are going to restrict such a fundamental human right as an individual’s freedom of movement, then the proper procedure must be followed and applied in the same way as it is to Israeli citizens who are banned from traveling – namely issuing a formal order with a specific time limit and conditions, and allowing the person involved to challenge the issuing of such an order.
The second aspect of the legal argument was substantive, with Adv. Sfard submitting that the restrictions on Mr. Jabarin’s human rights, should he be prohibited from attending the conference in Germany next week, would violate international humanitarian and human rights law, as well as Israeli constitutional law. Adv. Sfard argued that the test for determining whether a human rights defender should be prohibited from traveling for “security reasons” is a rigorous one, for two reasons. First, precluding travel for the purposes of participating in a conference on the issues of peace and justice impinges upon not only freedom of movement, but also upon freedom of political expression. Under Israeli legal jurisprudence, political expression is more sacrosanct than any other type of expression. Second, human rights defenders have a value to the public at large, comparable to that of journalists, humanitarian aid workers and medical personnel, and must therefore be given particular legal protection from State-imposed restrictions.
The Court decided that they would not rule on the first issue of procedure during this hearing, but would focus purely on whether allowing Mr. Jabarin to travel to Germany next week would amount to a threat to the security of the State of Israel such that restrictions on his basic human rights would be permissible. Counsel for the Israeli military authorities first argued that the West Bank has been a “closed military zone” since 2 July 1967, and therefore that individuals inside that territory have no “right” to freedom of movement from and to that territory. Rather, it was argued, the ability to do so is contingent on the discretion of the military authorities. Those authorities submitted that allowing Mr. Jabarin to travel abroad would constitute a security risk for the State of Israel, on account of his alleged political affiliations. To this end, Mr. Jabarin was described as a “Jekyll and Hyde” type character: human rights defender by day, activist for a “terrorist” organisation by night.
The Israeli army authorities have taken this position against Mr. Jabarin since 1988 without producing any evidence to support these claims. Between 1999 and 2006, however, Mr. Jabarin was allowed to travel abroad freely, doing so on eight separate occasions. Counsel for the Israeli military commander acknowledged that there was no evidence that Mr. Jabarin had engaged in any illegitimate activities when he was previously abroad. Secret evidence was presented to the Court, however, allegedly demonstrating that Mr. Jabarin has been and continues to be an active member of a political organisation designated as illegal by Israel.
When this secret evidence was presented to the judges by the Israeli army’s lawyers, all members of the public, as well as Mr. Jabarin’s lawyer, were required to leave the courtroom so that it could be examined ex parte. After briefly reviewing the secret evidence, the Court ruled that Mr. Jabarin will not be allowed to travel to Germany next week. The Court will, however, consider the general travel prohibition effectively being imposed on Mr. Jabarin, and will issue a judgment in the coming weeks addressing the procedural issues raised during the hearing. It is unclear as yet whether another hearing will be required for this purpose.
What is clear, however, is that the “secret evidence” system, more reminiscent of an authoritarian military tribunal than an enlightened administrative court, denied Mr. Jabarin the opportunity to be informed of, let alone respond to, the charges against him. His right to a fair trial and due process were thereby severely compromised. The Dr. Jekyll and Mr. Hyde analogy may be more appropriately used to portray not Mr. Jabarin’s character, but that of the Israeli justice system itself. Israel depicts itself as a democratic state that fully respects the individual rights of those within its jurisdiction; while its military apparatus regularly displays a distinctly contrasting attitude in its frequent infringements of the rights of Palestinians.
Al-Haq would like to express its most sincere thanks to Adv. Michael Sfard and to all who attended today’s hearing, as well as to those organisations who campaigned and intervened on Mr. Jabarin’s behalf, including the Association for Civil Rights in Israel (ACRI), Human Rights Watch, the Fédération Internationale des ligues de Droits de l’Homme (FIDH), and the Organisation Mondiale Contre la Torture (OMCT). Such efforts not only provided much needed support, but also sent a clear message to the Israeli authorities that the injustices being perpetrated by Israeli authorities upon human rights defenders in the Occupied Palestinian Territory (OPT) are not going unnoticed. Mr. Jabarin avowed that Al-Haq will continue to struggle for the promotion and realisation of human rights in the OPT, in spite of the obstacles imposed by the Occupying Power. Al-Haq will continue to keep you informed of any further developments in the case. Please do not hesitate to contact firstname.lastname@example.org should you have any questions, comments or require further information pertaining to the case.
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