Human rights, terror and justice in West Bank courts

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 Addameer.

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 group.

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 detention.

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 functions.

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.

The 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 Karaja.

If Nasser is eventually found to be innocent of being in the PFLP, however, the length of his detention will appear particularly problematic.

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.

He also 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.

For example, the Shin Bet leveled other, more serious accusations against Nasser, which the IDF prosecutor did not see fit to include in the indictment.

On 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 police.

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 daunting challenges.