Human rights, terror and justice in West Bank courts
Analysis: Case against activist Ayman Nasser highlights dilemmas over how to conduct judicial proceedings.
Rights activist AYMAN NASSER. Photo: Courtesy
There is a constant tension in the military justice system in the West Bank that
handles Palestinian criminal cases.
The case of Ayman Nasser, a wellknown
human rights activist whose trial started Monday and who stands accused of
involvement with the Popular Front for the Liberation of Palestine, encapsulates
much of the political and legal controversy.
Nasser says he is a human
rights activist for Palestinian prisoners’ rights at an organization called
The IDF indictment against him recognizes that he works as a
human rights activist, but says that he doubles as a member of the PFLP terror
Nasser and Addameer say the IDF is persecuting him for political
reasons, trying to intimidate human rights organizations which publicly
criticize the IDF and fight for prisoner rights.
The indictment does not
accuse Nasser of involvement in actual terror activity.
It focuses on his
alleged presence at PFLP gatherings, including one specific incident in which he
is accused of giving PFLP recruiting materials and paying Is’an Karaja NIS 200
for transportation costs to recruit new PFLP members.
Nasser says he was
present at most of the events mentioned, but that neither he nor most attendees
had anything to do with the PFLP.
Essentially, the IDF argument is that
Nasser was involved in activity supporting the PFLP ideology, which is a crime
under Israeli law in the West Bank.
It is possible that one side is
completely right and the other side completely wrong. But it is also possible
that Nasser, or people like him, have complicated relationships with different
groups operating in the West Bank.
Where does one cross the line from
human rights activist to being associated with a terror group? Should a human
rights activist be guilty of a crime if he is frustrated enough with a perceived
lack of progress toward statehood to assist “resistance” groups with nonviolent
aspects of their operations, such as helping to organize a nonviolent rally,
while disapproving of their actual terror tactics? If he is guilty of a crime,
can he be held in detention for a large number of days pre-indictment, as
hardened terrorists might be held? The accusations against Nasser are far from
the harshest of accusations in West Bank cases, which have included convictions
of terror masterminds, Hamas commanders and frequent prosecutions of
perpetrators of shooting incidents.
In that light, part of the
controversy, as with many West Bank cases, is the length of pre-indictment
Even in the West Bank, it is somewhat unusual that someone
accused of mere association with terror groups – as opposed to being part of
their terror operations apparatus – to be held pre-indictment, as Nasser was
held, for 45 days.
The IDF can respond that he did have several hearings
before a court to extend his detention, as required by law.
It can also
note that in a November 3 decision, the court justified continuing Nasser’s
detention based on three witnesses identifying him as being present at PFLP
In that decision, the court struggled with issues of
identification, as the witnesses claiming that Nasser was involved with the PFLP
identified him as Ayman Karaja, a similar, but not identical, name.
court eventually resolved its doubts, noting that one of the witnesses against
Nasser identified him in a photograph as the person he had been referring to as
If Nasser is eventually found to be innocent of being in the
PFLP, however, the length of his detention will appear particularly
However, on November 3, the court also justified Nasser’s
detention based on a past conviction for placing a bomb.
Asked about the
past conviction, neither Nasser’s attorney, Mahmoud Hassan, nor Addameer
responded by press time.
Nasser has also alleged he has various medical
conditions requiring medication and that during his detention by the Shin Bet
(Israel Security Agency), he was not access to his medication.
said that he was held in solitary, questioned sometimes for 20 hours at a time,
and generally treated improperly and even illegally in violation of his rights
as a prisoner.
The IDF has denied the allegations.
There have been
cases where an initial IDF denial was proven wrong and there have been cases
where a prisoner’s complaints of torture turned out to be exaggerated, so it can
be difficult to get to the bottom of such disputes.
This is particularly
true since both sides view such fights as a chance to showcase the greater
debates over the legitimacy of the West Bank military courts system.
example, the Shin Bet leveled other, more serious accusations against Nasser,
which the IDF prosecutor did not see fit to include in the indictment.
the other hand, Addameer initially said there were no witnesses against Nasser –
but regardless of whether the witnesses’ testimony will carry weight, the
prosecutor has listed four such witnesses.
Part of the controversy also
arises from confusion about the procedures.
Many defendants do not
understand the procedural differences between the pre-indictment the
postindictment stages of the case – such as that pre-indictment the prosecutor
may keep evidence secret, which it must reveal post-indictment if it chooses to
use the evidence.
Another fault line was exposed in the first day of
trial. Mahmoud Zeitoun, the prosecution’s first witness, had made a number of
accusations about Nasser’s involvement with the PFLP when interrogated by
But at trial he renounced his statements and said he made them up
because it was the only way the police would let him go to sleep after what he
said was essentially 40 hours of questioning.
Such Palestinian witnesses
telling police one thing and then blaming police for coercion or torture in
court is not uncommon.
The IDF’s examination of Zeitoun indicated that it
would claim his earlier testimony to police was true, and that his later
renunciation was motivated ideologically by his disregard and nonrecognition for
the military courts, as well as the realization that his testimony could hurt
the case of a fellow Palestinian.
There have been cases where courts
threw out testimony to police, ruling that proper warnings and witness rights
were not observed, but there have been cases where courts have held that a
Palestinian witness’ recanting of testimony was fabricated because of opposition
to being tried by a non-Palestinian court.
These issues exist in Israeli
courts also, but usually there are not the same nationalistic, ethnic and
religious overtones to accusations that police coerced a witness or that a
witness is lying to a court.
The Nasser case shows that there are no easy
answers to these dilemmas and that both sides – the Palestinians who are
suspected of crimes set down by another nation’s military and brought to trial
in another nation’s courts, and the IDF prosecutor who is obligated to try cases
against another people that may not cooperate – can easily claim they are facing