In a letter sent to President Yasser Arafat, Human Rights Watch/Middle East expressed deep concern over the Palestinian military court trial in Nablus on Tuesday that sentenced Fawzi Sawalha, a member of Force 17, to death for treason and terrorism.
The court also handed down prison sentences of up to life at hard labor to three other defendants tried in the same case.
Human Rights Watch also criticized the public screening before the trial of Sawalha's confessions as an ominous development" that can only discredit the reputation of the Palestinian judiciary"; It urged President Arafat to ensure a halt to this practice, which violates a detainee's right to be presumed innocent until proven guilty according to law.
The Nablus military court, basing its convictions on the defendants' confessions and prosecution witness statements, rejected the defendants' claims that their admissions had been extracted under torture and threats.
A copy of the letter follows.
August 14, 1997
President Yasser Arafat
Gaza Strip, Gaza
Via post and facsimile
Dear President Arafat:
We are writing with regard to the military trial and judgment of four persons working or associated with the Palestinian Force 17 in Nablus who were convicted and sentenced two days ago on treason and terrorism charges. One of them, Fawzi Mohammed Mahmoud Sawalha, has been sentenced to death, and the others handed prison sentences of up to life at hard labor in a military trial that fell well short of international standards for a fair trial.
Sawalha, age 23, and Khaldun Sami Abdel Salam Uthamna, age 24, were charged with terrorism, treason, and spreading false information in order to undermine the prestige of the Palestinian Authority, all of which can carry the death penalty according to Articles 174, 131/A and 164/B of the Palestinian Liberation Organization penal code. Taher Ahmed Sherif Jamlan, a Force 17 agent, was charged with terrorism and treason, and Nasser Rashid Hamadna, a civilian, was charged with terrorism.
While cognizant of the gravity of the offenses that the defendants are alleged to have committed, we believe that they should be granted new trials that comport with international standards for a fair trial. The shortcomings in their detention and trial were numerous and serious:
* The presiding judge at their trial failed to allow a medical examination of the detainees by an independent physician to assess their claims that they had been tortured during interrogation. This was despite the fact that the four defendants withdrew their confessions after the first court session, claiming they had been made under duress and torture at the police criminal investigation center in Nablus, including hammer blows to the head and whippings. They testified that they had also been subjected to shabeh, in which the detainee is hooded and shackled or confined in an unnatural and uncomfortable position. Some of the defendants said the interrogators threatened to rape their sisters and all of them said they had been threatened that they would be killed unless they pled guilty. Two of the defendants, Fawzi Sawalha and Khaldun Uthamna, claimed that due to severe stomach pains caused by heavy beatings, they had been transferred to the government-run Rafidia Hospital in Nablus and to a private clinic in Balata Camp respectively. Uthamna testified that he was once taken from the police criminal investigation center to outlying fields at night for more beatings.
In coordination with the other defense lawyers, Sawalha's lawyer requested a medical examination by an independent physician, and repeated the request in subsequent court sessions. A medical examination before the start of the trial performed by a physician from Rafidia Hospital, which is run by the Palestinian Authority, concluded that there was no evidence to substantiate the defendants' claims of torture. The same physician later testified in court. The judge rejected the lawyers'; request for an independent examination and did not rule out the confessions as evidence. This prompts concern that the court disregarded the principle found in Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. That article provides that "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings..." Article 13 of that Convention states that "any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities."
According to information we have received from lawyers, human rights activists, relatives of the defendants, and the media, the court based its conviction both on the defendants' confessions and on witness accounts. But, according to our information, none of the prosecution witnesses was able to identify the defendants or confirm they were the perpetrators of the crimes of which they were accused.
* In flagrant disregard of the right of defendants to be presumed innocent, a videotaped confession by Fawzi Sawalha was broadcast on a local Nablus television station on July 6, before the start of the trial. Sawalha was arrested on June 29 and held at the Nablus police criminal investigation center. He reportedly confessed to having led a group of masked men on rampages through the village of 'Assira al-Shemaliya in the northern Nablus governorate, beating up people and spreading terror. The screening of his confession was part of a program in which the head of the Nablus police criminal investigation division, Colonel Jihad al-Misaimi, was interviewed on the case by callers to the station.
We are deeply concerned by this televised confession, which contradicts Article 14.2 of the International Covenant on Civil and Political Rights, which states: "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law." In addition, the United Nations Human Rights Committee, in its General Comment 13(21) on Article 14.2, stated, "It is, therefore, a duty of all public officials to refrain from prejudging the outcome of a trial." We strongly urge that security officials be prohibited from passing videotaped confessions to the media of detainees who have not been tried.
* While in detention, guards did not permit Sawalha more than a few minutes privacy with his visitors, including lawyers and family members, and remained within earshot during most of the visits. These practices violate the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 18 of which states: "The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal consul may not be suspended." The same principle stresses in paragraph 4 that: "Interviews between a detained or imprisoned person and his legal counsel may be within sight but not within hearing of a law enforcement official." The lack of privacy inhibits the defendant from fully communicating with his lawyer.
The concerns we have enumerated are deepened in light of the imposition of the death penalty against one of the defendants. Human Rights Watch opposes the death penalty in all circumstances, because of its inherent cruelty and irreversibility. International human rights law, as codified in the International Covenant on Civil and Political Rights, favors the abolition of capital punishment, although it does not prohibit it categorically.
We wish to remind you that the Palestinian Authority committed itself under the Oslo Accords to carry out its responsibilities with due regard to international principles of human rights and rule of law. On October 2, 1993, shortly after signing the Declaration of Principles, Your Excellency announced that the Palestine Liberation Organization was committed to respect all internationally recognized human rights standards and wished to incorporate them into Palestinian legislation.
We therefore urge a commutation of the death sentence against Sawalha. It is our fervent hope as well that all four defendants will benefit from a new trial that comports with fair-trial standards, and that their claims that torture was used to obtain confessions are thoroughly investigated. Article 12 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states: "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."The findings of such an investigation should be made public, and anyone found guilty of torture punished.
Finally, we respectfully urge you to intervene to halt the practice of allowing confessions to be televised before trial, a practice that can only discredit the reputation of the Palestinian judiciary.
Acting Executive Director