Legal Affairs: Mum's the word?

Legal Affairs Mums the

By DAN IZENBERG
October 8, 2009 22:22

 
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Quiz: Who made the following statement (with a few minor changes of text to help conceal the person's identity) ? "The judicial handling of... detainees strengthens the feeling that the need to deter the... opponents and foil anyone who tried to interfere so as to enable the government to continue... took precedence over basic rules that must be observed in order to conduct proper criminal procedures." Is the reader stuck? Perhaps it was the recently published UN Human Rights report on Operation Cast Lead which devoted a 20-page chapter to what it described as "Repression of Dissent in Israel, Right to Access to Information and Treatment of Human Rights Defenders" - and, by doing so, managed to further infuriate many Israelis? Sorry, but that answer is incorrect. Here's another quote, again with a few minor changes. "There is apparently here, too, a lack of understanding not only by policemen on the beat, but also by judges about what the job of the judicial system in a democratic society is in a time of conflict, not just in ordinary times when [only] thieves or people who cheat on their rent are brought to court." Wait a minute. It sounds like the allegations put forward by Adalah - The Legal Center for Arab Minority Rights in Israel, in a recent report entitled "Prohibited Protest," in which it accused the law enforcement system of using illegal methods, particularly mass arrests, to stifle protest against the Gaza operation last winter. Another reasonable guess, but wrong again. The first quote comes from a classified four-page report prepared by the Public Defender's Office addressing the behavior of the courts, particularly juvenile courts, in the wake of the disengagement from Gaza in August, 2005. The second comes from Public Diplomacy and Diaspora Affairs Minister Yuli Edelstein - an MK at the time - during an urgent Knesset Law Committee debate on the arrests, trials and remands of minors who protested the disengagement. Many Israeli critics of Judge Richard Goldstone, who led the UNHRC investigation into Israeli action in Gaza, have mercilessly attacked him for charging Israel with committing war crimes during the operation. They were also incensed that he accused the only democracy in the Middle East of stifling dissent and claiming that the courts helped the state do so. The commission relied on the findings of Adalah for much of its information regarding police arrests and the conduct of the state prosecution and the courts regarding detainees. One might easily disregard the allegations of the commission and Adalah on the grounds that they are biased against Israel, were it not for the fact that the Public Defender's Office, backed by MKs across the political spectrum, made almost identical accusations. BEFORE TURNING to the Adalah report, here is one more quote from Public Defender Inbal Rubinstein at the Knesset Law Committee meeting held on November 7, 2005, in which she detailed the law enforcement policies enacted against the anti-disengagement protesters. "We detected detentions which can be described as collective judgments. We saw that the detainees were systematically brought in groups to hearings on requests for remand in custody. We saw that regarding some of them, in fact most of them, the evidence was very weak regarding their involvement in violence or rioting... We see something that stood out in many judicial decisions, that the extension of remands, primarily for a few days but sometimes until the end of legal proceedings, was aimed at deterring others from protesting." Many of these same allegations are included in Adalah's 51-page report. "As in every incident which does not reflect the state consensus, the wave of protest against the assault in Gaza was met by law enforcement authorities, the police, the state prosecution and even the courts, with a disproportionately severe response," the organization charged. More than 830 people, most of them Israeli Arabs, were arrested during the fighting. Of these, 34 percent (281) were under the age of 18. So far, the state has filed 236 indictments and closed the files on 450. Half of those indicted so far are minors. Eighty-six percent of the indicted minors were remanded in custody until the end of proceedings, compared to only 73% of the adults. Adalah charged that the police had arrested peaceful demonstrators participating in legal protests to intimidate opponents of the war and discourage them from protesting. It charged that when they brought the detainees to court for remand hearings, they had exaggerated the allegations against them to persuade the court to hold them in jail and get them off the streets. The courts refused to reject the remand requests or to consider more lenient supervisory methods such as house arrest, even though almost all of the allegations against the protesters did not include serious charges. In asking the court for remands, the police and state attorney prosecutors often presented arguments not based on law, such as the fact that a protest "hurt public morale" or because of the "stormy security situation." In some cases, the judges openly allowed their personal views on the war in Gaza and the protests against it to color their decisions. In one case heard in the Haifa District Court, a judge explained his decision to remand a minor in custody, using the following reasoning: "Citizens of the state, including those who are minors, who enjoy all the benefits of the land in the sense of living in a democratic regime - and this is not to be taken for granted anywhere in the world - which grants the right of freedom of expression and protest to every person, and permits harsh statements and sharp criticism even in stormy security times such as now, and makes it possible to make statements against the state and in favor of its enemies even when they are showering missiles on its citizens, must obey the law and must certainly not attack policemen who are there to impose order. This behavior is like that of the man who spits into the well from which he drinks." It should be added that the Goldstone commission went further afield in its charges of suppressing dissent, criticizing the state for barring human rights groups and journalists from entering Gaza during Operation Cast Lead; for launching a criminal investigation against New Profile, a group that offers advice on how to avoid the draft; and for trying to persuade foreign governments to stop funding Breaking the Silence, an organization that publishes damning testimonies of IDF soldiers. Both the commission and Adalah also charged that the Shin Bet (Israel Security Agency) had illegally summoned Israeli Arab political activists for "talks" in order to threaten them out of continuing their political activities.

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