July 2011, Pages 18-20
By Barbara Erickson
Daoud Nassar meets with visitors in a cave on his family’s land. (Photo Courtesy Norcal Friends of Sabeel)
A University of California law school made history this spring when it hosted the first ever U.S. conference to explore the Palestinian search for legal justice. Not surprisingly, it was an event that drew fierce opposition. After an emergency closed session that lasted until midnight on the eve of the gathering, the board of directors bowed to pressure and agreed to remove the school’s name “and brand” from conference literature.
Nevertheless, “Litigating Palestine: Can Courts Secure Palestinian Rights?” took place March 25 and 26 at the San Francisco-based Hastings College of the Law, attracting human rights attorneys and activists from across the country, including a number of us who had just returned from visiting Israel and the West Bank. We already knew that, while conference organizers had faced an uphill battle, the odds against Palestinians in Israeli courts are even worse.
During nearly three weeks of travel, our group heard from human rights attorneys, defendants, and family members of political prisoners, as well as plaintiffs in civil cases fighting to hang onto their land. There, as at the Hastings conference, we often heard that the struggle for justice is growing more difficult, with Israel’s current government bent on stifling dissent and increasingly racist in tone.
A case in point is that of Ameer Makhoul, an internationally renowned human rights activist. His attorney, Hussein Abu Hussein, spoke to us in Nazareth and told how, in May of last year, police and members of Shin Bet arrested Makhoul after midnight at his Haifa area home, confiscating mobile phones, laptops and computer hard drives.
Abu Hussein and two lawyers from the Adalah legal aid society were soon on the case, but faced overwhelming obstacles. If democracy “fights terrorism with one hand tied behind its back,” as former Israeli Supreme Court Justice Aharon Barak said, Makhoul’s attorneys had to fight for him in handcuffs and shackles.
They were not allowed to speak to Makhoul or even be in the courtroom when he was present. The charges against him were held in a secret file, and state witnesses were forbidden to disclose any details in cross-examination. His attorneys were not allowed to see Makhoul for nearly two weeks, and then only after repeated petitions, a boycott of court proceedings, and public protests.
On their first encounter with Makhoul, he could not look them in the eye, Abu Hussein said. He huddled in a heavy overcoat, shivering with cold, even though it was May. He asked them how long he had been in jail, and said that he couldn’t remember the faces of his wife and daughters. Makhoul had been interrogated for 48 hours without being allowed to sleep—and this came on top of 24 hours of travel. He had faced his interrogators shackled in a cramped position to a tiny chair.
During the two weeks he was held incommunicado, Makhoul confessed to meeting a foreign agent and revealing state secrets. But he had signed under duress, and in court he entered a not guilty plea. Now he had to prove that he had not harmed state security. The burden was on him; there was no presumption of innocence.
For four months, Makhoul’s lawyers had to speak to him through a glass barrier and via telephone, and they managed to win private meetings only after fighting for the right in court. Then they secured another small victory. Under Abu Hussein’s questioning the police investigator admitted that, although he had monitored 30,000 telephone calls and examined the hard drives of five computers, he had found no evidence that Makhoul ever met with a foreign agent.
Nevertheless, the charge stood, and now Makhoul’s attorneys faced a strategic decision: go to trial or plea bargain. A Palestinian defendant on security charges faces a nearly 100 percent chance of conviction. Knowing this and the record of decades-long prison sentences, they chose to plea bargain. “All bad options,” Abu Hussein acknowledged, “but there is bad and there is worse.”
The state dropped a charge of assisting the enemy in wartime, and in December Makhoul was sentenced to nine years for meeting with a foreign agent (Hassan Jaja, an environmental activist living in Jordan) and revealing state secrets (the locations of a well-known prison, a munitions factory and a security service headquarters, all sites easily found on the Internet).
Although Abu Hussein and his team had a chance to appeal, the chances of winning not only were minimal, but risky: the court is known to increase sentences when defendants appeal. But the attorneys also know that Makhoul’s case has outraged many in the international community, who see it as pure harassment of a well-known activist, and there may be a way to capitalize on this support.
Makhoul is an Israeli citizen. If he lived in the West Bank, which has been under military occupation since 1967, he could have faced administrative detention, with even fewer rights to due process. More than 200 Palestinians are currently held under this procedure, without trial or access to the charges against them, rarely allowed family visits, and facing the possible renewal of their detention orders every six months. Some have spent four or more years under administrative detention.
In civil cases, Palestinians who go to court over land or settlement issues also face dismal prospects, whether they are citizens of Israel or live under occupation.
Daoud Nassar owns 100 acres of land near Bethlehem, in the West Bank. From his farm, 3,000 feet above sea level, he can see the white buildings of fortress-like settlements encroaching on confiscated Palestinian land. These are part of the Gush Etzion bloc, developed by Israel in violation of international law—and only Nassar’s land stands in the way of completing the bloc as planned.
The Nassar family has owned the farm since Ottoman times. Unlike many Palestinians in former times, Daoud’s grandfather and father wisely registered their holding with each successive change of government. Thus, in 1991, when Nassar heard through the grapevine that Israel had declared his property state land, he hired a lawyer and appealed to the courts.
The farm is in Area C of the West Bank, which is under full control of the Israeli military, so Nassar went to military court with his papers: ownership documents from the Ottoman, British and Jordanian governments, and proof of tax payments from Israel, which refused to register Palestinian land after the 1967 invasion.
“The Israeli military judge was shocked to see these papers,” Nassar said when we visited him this year, “and they immediately postponed the case because they had no case.” After a lull, the court came up with a series of demands. As Nassar met each one, the court came up with another. He had to resurvey the land because the 1922 map was done by hand. He had to get his neighbors to sign the new map. He needed eyewitness accounts from people who had worked on the farm. He had to do another survey, this time with an Israeli firm, because the court would not recognize any other.
It has cost him $140,000 and Nassar is still in court, still clinging to his land with the help of international supporters who help pay for his legal battles and come as volunteers to work on the farm. The property has been named the Tent of Nations and dedicated to peace work, bringing children from refugee camps to summer programs and other projects.
While the court case drags on, settlers have invaded, uprooting trees, damaging the water tank and attempting to build a road. Israeli authorities refuse to grant Nasser building permits, forcing him to meet international visitors in a cave, and threatening to destroy even his cisterns for collecting water.
Farther to the south, thousands of Bedouins are facing a similar fight for their land. Like Makhoul, they are citizens of Israel, residing in the Negev Desert. Israel is determined to drive them from their villages and into townships, forcing them to leave their herds of sheep and goats, their olive groves and fields.
Dozens of Bedouin villages are facing mass demolition orders, which they are fighting with the help of a regional council, but they have the weight of the state against them. Often it is a single volunteer lawyer on their side against three or more well-paid attorneys on the other. Recently settler groups have formed NGOs to sue in the courts for more demolitions.
Most Bedouins lack documents, and the courts reject other proofs of ownership. For the residents of El Araqib, which has been demolished and rebuilt some 18 times in the past 10 months, it is not enough, for instance, that the village cemetery dates back to the early 20th century.
Recently, Oren Yiftachel of Ben-Gurion University in the Negev discovered a map in London showing El Araqib settled with tent dwellers in 1945. He also has aerial photographs that prove the land was widely cultivated. Presented with this evidence, the court should recognize the Bedouins’ ownership, Yiftachel told us, but he was doubtful. “I don’t think they will do that,” he said. “They will probably impose some kind of an emergency law or something else.”
Palestinians, including the Bedouins, do manage to win an occasional concession from the courts. Judges may agree to remove a checkpoint between Palestinian villages or dismantle an “illegal outpost” in the West Bank, but these decisions leave in place hundreds of checkpoints and hundreds of thousands of Jewish settlers.
Nimer Sultany, a Palestinian human rights attorney now pursuing a doctor of laws degree at Harvard, addressed this topic at the Hastings conference. The Israeli Supreme Court fragments reality, he said, and conceals the general context of the occupation by avoiding, for instance, the issue of settlements overall or the policy of checkpoints.
If a case is said to involve security, the court cedes its responsibility to the army or intelligence services. Thus, the Israeli Supreme Court has upheld the legality of the separation wall because it is ostensibly for security, even though it snakes well inside the West Bank borders. In this it defied a decision by the International Court of Justice that the wall is clearly illegal.
Just this spring the Supreme Court upheld a policy requiring Palestinians to have permits to access their own land beyond the wall. The decision expresses concern for the hardships this creates and asks the army to “do everything possible to reduce the harm to the residents.” But the court also knows that the military regime continues to add to the confiscated land behind the wall and will easily ignore the directive to “do everything possible.”
Also for alleged security reasons, Israeli justice has given its imprimatur to extrajudicial executions, deportation without trial, home demolitions, and the wholesale confiscation of land from indigenous residents. Because of loopholes in a 1999 Supreme Court decision on torture, “moderate physical pressure” is allowed, and applied even to non-militant detainees like Ameer Makhoul.
Apologists for the Israeli courts cite as evidence that justice is served that the courts hear cases from a broad scope of civil litigants, Palestinians and Jewish Israelis alike; offer statements in support of human rights; and hand down the occasional decision to punish a member of the military or move the separation wall a few meters. But a court that never uses the word “occupation” in its decisions, that obscures the context of Palestinian grievances, is putting a spin on Israeli justice.
As Sultany said at Hastings, Israeli court decisions “present a narrative of defensive democracy and well-meaning occupier that is faced with irrational, incomprehensible rage and violence.” Incomprehensible because, in their view, there is no occupation and therefore resistance is nothing but terrorism. Well-meaning because court decisions give lip service to human rights.
Reports at the conference painted such dismal prospects that one audience member asked if it wouldn’t be better to boycott the courts altogether. But it is clear that individual defendants and plaintiffs will continue to look for redress in Israel’s courts, even if it is to restore a few dunams of farm land beyond the separation wall or sign a phony plea bargain to avoid a life behind bars.
Barbara Erickson is a journalist living in the San Francisco Bay Area and a member of Northern California Friends of Sabeel.
Published: Washington Report