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Impunity for settlers, prosecution for Palestinians: the two roles secret evidence plays in the Israeli justice system

Wednesday, 13 October 2010 11:46
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4 AUGUST 2009
REF.: 33.2009E

As a Palestinian human rights organisation committed to the promotion and protection of human rights and the rule of law in the Occupied Palestinian Territory (OPT), Al-Haq strongly condemns the decision of Israeli State Prosecutors to

drop all charges against an Israeli settler who shot and wounded two Palestinians in the West Bank city of Hebron in December 2008.

Ze‘ev Braude, a resident of the Israeli settlement of Kiryat Arba‘, was caught on film as he shot at two members of a Palestinian family while Israeli occupation forces evacuated settlers from a nearby house. During the evacuation, 50 settlers from Kiryat Arba‘ gathered in an area bordering the Palestinian family‘s land. Braude and another settler crossed onto the family‘s property, and Braude, carrying a pistol, attempted to climb onto a balcony where the family had gathered to watch the evacuation. Braude proceeded to fire shots at members of the family when they attempted to prevent him from reaching the balcony. The incident was videotaped by one of the family members, and Israeli human rights group B‘Tselem later released the footage to Israeli police and security forces as evidence to support Braude‘s prosecution.

Braude was formally charged with two counts of intent to cause grievous bodily harm.  Following the indictment, Israeli Defence Minister Ehud Barak authorised a certificate of priviledge for evidence included in the prosecution‘s investigation material, effectively denying Braude access to information that could aid in his defense. Braude‘s lawyer successfully petitioned the Israeli Supreme Court to declassify the evidence and provide it to his client.  In his ruling, Justice Elyakim Rubinstein held that in this instance, the right of the accused to a fair trial outweighed the harm to national security. Subsequent to the Supreme Court‘s decision, the State prosecution declared that it would drop the indictment against Braude, stating that the protection of classified information for national security reasons outweighed the benefit of proceeding with the prosecution.

This incident highlights a troubling example of the impunity enjoyed by settlers with respect to their violent actions against Palestinian civilians and their property. It also correlates to a broader policy of impunity regarding the settlers‘ presence in the OPT. The movement of Israeli settlers into the OPT, and the establishment of settlements on occupied territory, violates customary international humanitarian law. The rule, which is codified in Article 49(6) of the Fourth Geneva Convention, prohibits the transfer of the Occupying Power‘s civilian population into the territory it occupies.

In addition to the unlawful presence of settlers in the OPT, Israel has failed to fulfil its international legal obligation to prosecute criminal acts committed by settlers. As the Occupying Power, Israel has a duty under customary international law, specifically Article 43 of the Hague Regulations, to ensure public order and safety in the territory it occupies. This case is especially significant because, despite the existence of videotaped evidence of the settler‘s alleged crime, State prosecutors used their discretion in employing national security claims to drop all charges against the accused. The Prosecution’s decision to completely circumvent a criminal trial without exploring other procedural legal avenues demonstrates the State‘s unwillingness to bring settlers to justice for violent actions against Palestinians in the OPT. Such failure to hold settlers to account creates an atmosphere of impunity, which encourages increased settler violence.

This case also illustrates the discriminatory elements of the Israeli justice system, particularly the courts’ inconsistent treatment in balancing the State‘s right to keep information privileged with an individual‘s right to a fair trial. Under international human rights law, Israel is obliged, according to Article 26 of the International Covenant on Civil and Political Rights, to ensure that all persons are entitled, without discrimination on any ground, to equal protection before the law. In this particular case, the Israeli Supreme Court found that the accused settler‘s right to a fair trial trumped the State‘s right to safeguard secret information for the benefit of national security.

By contrast, human rights groups have consistently documented cases where Israeli courts have allowed prosecutions of Palestinian defendants to proceed on the basis of secret evidence, thereby denying their right to due process.  Israel‘s practice of administrative detention in the OPT has meant that Palestinians are routinely arrested and held without charge or prosecuted on the basis of secret evidence that is not disclosed to them. The detainees have no legal recourse within the Israeli legal system to challenge the evidence against them.

The Israeli judiciary‘s decisions permitting the State‘s use of secret evidence in support of its interests has even extended to allowing arguments about the constitutionality of particular laws to be argued by the State ex parte. In March 2009, three Israeli human rights organizations withdrew their petition to challenge the constitutionality of an Israeli criminal procedure order from the Supreme Court. The petition was withdrawn in protest over the Supreme Court‘s decision to allow the General Security Service to present information pertaining to the constitutionality of the law exclusively to the Court in the absence of the petitioners, thereby denying the petitioners the right to examine and question the evidence presented.

These cases demonstrate a troubling trend within the Israeli justice system, namely the system‘s failure to provide Palestinians with an effective means of legal recourse to challenge the system to which they are subject, thereby denying equal protection under the law.

Al-Haq strongly condemns the Israeli government for failing to fulfil its international legal obligations, including its failure to reverse its illegal population transfer policy in the OPT and its failure to effectively prosecute settlers who engage in criminal activity so that they are held to account under the full extent of the applicable law.

Al-Haq urges the international community to take urgent and effective measures to ensure that Israel abides by its legal responsibilities to remove the illegal settlements in the OPT and to adequately protect the occupied population, including duly punishing Israeli settlers responsible for assaulting Palestinians.


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