Everyone is entitled...to a fair and public hearing by an independent and impartial tribunal.
Universal Declaration of Human Rights, Article 10
Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts...
U.N. Basic Principles on the Independence of the Judiciary, Principle 5
The State Security Court is a special tribunal that has displaced and undermined the normal court system. It was created by presidential decree123 in 1995 to deal with internal and external threats to national security. Since then it has tried more than 130 Palestinians in grossly unfair trials. So far during this Intifada, the court has been used mainly to convict Palestinians accused of being informants for Israeli security services. Palestinian human rights organizations, the Palestinian Bar Association,124 the PLC human rights committee, and many private lawyers have condemned the State Security Court and called for it to be abolished.
Expanding Jurisdiction and Interference Undermine Regular Courts
Until the current Intifada, most of the accused in Higher State Security Court cases continued to be Islamists, as well as other opponents of the Oslo Accords and critics of the PA. Alleged collaborators were not tried, partly because their offenses dated from 1994 and the PA felt constrained by the Oslo Accords. Instead, suspected collaborators were held in prolonged arbitrary detention without charge or trial. The first alleged collaborators were tried in 1997, not in the State Security Court, but in the Military Court, where trials also fall short of international standards, though importantly there is a right of appeal.127 The PA gave jurisdiction over collaborator cases to the State Security Court in early 2000. The first trial took place on 7 December 2000 in Nablus, just over two months after the current Intifada began.128
The Palestinian authorities have continued to expand the jurisdiction of the State Security Courts well beyond the usual boundaries of national security, further displacing the ordinary court system. In March 1998, President Arafat altered the structure by dividing the court into a Lower State Security Court and Higher State Security Court. The lower court was given jurisdiction over crimes relating to public health and the pricing, weighing, and quality of foodstuffs (such as selling food that has expired), and violations of regulations on food supplies, price monitoring, and control.129 The most serious cases, usually those that carry a maximum penalty of death or life imprisonment, continued to be referred to the Higher State Security Court. In June 2000, over one thousand individual cases of criminal drug use or trafficking were transferred to the Lower State Security Court, a move that the PA justified on the grounds that the civil court system could not cope with the backlog of such cases.130 Rather than transferring these cases to a system of summary justice, however, the civil system should have been strengthened to cope with them. There have also reportedly been moves by the state security attorney general to transfer jurisdiction to the Lower State Security Court for cases of dishonored checks.
Beyond the court's formal jurisdiction, President Arafat may at any time refer any case to the court on an ad hoc basis. State security attorney general Khaled al-Qidra told Human Rights Watch that the only cases referred to the State Security Court are "those directly attacking Palestinian national security." However, in recent years the State Security Court dealt with many cases that had little to do with national security and should have been tried by the ordinary courts, including rape, physical assault of a minister, murder, bank robbery, and tax evasion.131 Hashem Rabah al-Hito, a merchant who had allegedly evaded taxes, was tried by the Higher State Security Court on charges of sabotaging the national economy. Al-Hito was sentenced to seven years hard labor on December 31, 1998, and fined 5 million shekels (approximately U.S. $1.2 million).132 The alleged murderers of Nidal Fawzi Nasser, an officer in the MIS, were tried by the State Security Court in Gaza in May 2001. Khaled al-Qidra explained to Human Rights Watch that by murdering a member of the security forces the assailants were held to be attacking the PA itself.
Cases sometimes seem to be referred to the State Security Court to meet public demands for retribution following serious crimes, including human rights abuses, rather than because of the dictates of justice and fairness. This reflects a broader pattern of executive interference in the independence of the judicial process. In a report entitled No to Street Justice,133 the PICCR studied a number of cases where street demonstrations, some violent, led to the authorities transferring ordinary criminal cases such as rape to the State Security Court. Under the pressure of public opinion these courts have given hasty verdicts, in some cases imposing the death penalty. Street demonstrations have also at times demanded that the State Security Court reduce unpopular verdicts.134
A human rights lawyer in Gaza, commenting on the question of who decides what cases go to the Higher State Security Court, told Human Rights Watch:
This is the dangerous thing. Who decides? President Arafat, not the law. He decides that according to lots of things that do not accord with the law in my opinion. Where public opinion is strong, they demonstrate, shout, he takes the case away from the police and transfers it to the State Security court.135
Violation of the Right to an Independent, Impartial, and Competent Court
In the wake of criticism of the exclusive use of military judges in the State Security Courts, President Arafat has named Fateh Sorour, a serving civil judge (in the Conciliation, or lower, court in Bethlehem), to be chief judge in every trial of the State Security Court in the West Bank since mid-2000. However, contrary to ensuring the independence of the judiciary, Sarour has no security of tenure and can be dismissed by the president at any time. Three judges sit in Higher State Security Court cases, and the other two judges in all West Bank cases have been from the military. Only military judges appear to have been used in State Security Court trials in Gaza during the Intifada. Appointing ad hoc judges underlines the lack of independence of the court, especially if they are serving members of the security forces.136
Trials of Collaborators During the Intifada
Human Rights Watch spoke with lawyers, judges and other officials participating in the trials, as well as lawyers who had observed the trials in court and the families of the accused. The officials interviewed included Fateh Sorour, the chief judge of the State Security Court in all trials in the West Bank since mid-2000. Human Rights Watch also obtained detailed notes of the hearings in seven of the trials, made by the Palestinian lawyers who observed these trials. The trials have been of alleged informants, but any accused, whether in "political," "security," or ordinary "criminal" cases, face the same serious violations of fair trial rights.
Some of the abuses of trial procedures in the early years of the State Security Court have been rectified. Trials are now usually held during the day rather than in the middle of the night; in principle they are open to the public; and where witnesses do give evidence they can often be cross-examined. However, as described below, State Security Court trials are still inherently and grossly unfair. Speaking about the Higher State Security Court, an official of that court told Human Rights Watch "There is no law":
It is more a question of security than justice. It is a mixture of politics and justice. Nothing has changed in the State Security Court.138
Violation of the Right to a Fair Trial and to be Presumed Innocent
The trials of alleged informers, however, are often held in a highly charged atmosphere that undermines the right to a fair trial. Some hearings seem to be hastily convened in response to Israeli attacks and public anger. For example, tensions were running very high after an Israeli helicopter gunship attack on a building in Nablus on July 31, 2001, killed eight people, including two senior Hamas activists and two children who were playing outside. Some 50,000 people demonstrated in Gaza in protest, thousands more in towns on the West Bank.141 The sentencing in Nablus of those accused in the Thabet Thabet case (see below) was brought forward by a day and held at 11:30 p.m. on the evening of the attack, in order that the guilty verdict could be publicized prior to the funerals of the eight, according to the governor of Nablus. On August 2, the day that tens of thousands of people gathered for these funerals,142 the trial opened in Nablus of 50-year-old Ahmad Muhammad Ahmad Abu ‛Eisha for allegedly assisting Israel to assassinate Salah Darwaza, a Hamas activist.143 Three days later, in the same town, Sheikh Munzer al-Hefnawi was tried and convicted of helping Israeli security forces kill Sheikh Mahmud al-Madani, another Hamas activist, in February 2001. In circumstances such as these, the atmosphere inside and outside the court heightened the impression that the purpose of the court is to convict, not to weigh up the evidence impartially. The authorities must take steps to ensure that all trials are impartial and are seen to be impartial, including avoiding holding trials at moments of greatest tension and ensuring there are no protests or disturbances in court and within hearing of the court.
The right to be presumed innocent means the prosecution bears the burden of proving the guilt of the accused. If there is not enough evidence the accused must be acquitted, even if this goes against the public mood. Recent State Security Court trials of alleged collaborators since the Intifada began have lasted between eighty minutes and just under eight hours, some spread out over a few days. Where the defendants have denied the charges or pleaded guilty but denied elements of the prosecution case, the trials have not been long or thorough enough to determine fairly the guilt of sometimes up to five defendants in a single trial, often dealing with complex and confusing evidence. In most cases where defendants plead not guilty, the main or only prosecution evidence is uncorroborated, signed confessions, obtained from the accused while they were held in incommunicado detention, and which the defendants retracted in court. Although suspected collaborators often complain they were tortured or mistreated, the court fails properly to investigate claims by defendants that their confessions were extracted under duress or to require that the prosecution present other evidence that corroborates the confessions.
The prosecution evidence is rarely probed or properly challenged by defense counsel (see below). Unlike trials in the years after the court was established, defense witnesses are often allowed to be called, though the court-appointed defense counsel often do not find and present such witnesses. Where witnesses do give evidence, lawyers are usually able to cross-examine them, though court-appointed lawyers often do not do so.
The Bethlehem Case
All the defendants pleaded not guilty. The first defendant only admitted in court that prior to 1994, while in an Israeli prison, he had been protected by the authorities because he had been accused by other prisoners of being an informant. He also admitted that after being released he had lived for a while in a hotel in Tel Aviv (where the prosecution claimed he had worked for Israeli security services). He said that he had returned to Bethlehem in 1994 and became a loyal member of Fatah (Yasser Arafat's organization). The second and third defendants said in court that they could not understand why they had been arrested and prosecuted-i.e., that there was no evidence to justify their presence as accused.
The only evidence that the prosecution presented was the written confessions of the defendants. The defendants agreed they had signed the confessions but claimed they had been extracted through beatings. The judges called a doctor who had examined the first defendant in detention to give evidence. The doctor testified that although when he examined the first defendant in detention he (the first defendant) had claimed he had been beaten, the doctor could find no signs of such beatings. In court the first defendant vehemently challenged the doctor's testimony. A lawyer who attended the trial told Human Rights Watch that the doctor appeared "scared, [standing] like a chair."144 The court did not probe the other defendants' allegations that they had signed the confessions only after having been beaten.145
After four hours of hearings and based solely on the contested confessions, the first two defendants were sentenced to death (not yet ratified) and the last two were sentenced to life imprisonment. The verdict has been recognized as being so unreliable that, at least in relation to Hussam al-‛Aslini, the minister of justice has accepted a petition by his lawyer and suspended the verdict pending a review146
The Thabet Thabet Case
Violation of the Right to a Defense, to be Represented by a Lawyer of Choice and to have Time to Prepare Defense
Except in rare cases, accused appearing before the State Security Court are defended by lawyers who are serving members of the security forces appointed by the court and who are usually not practicing lawyers. They have neither the independence nor the training to present a credible defense-or in some cases any defense. On at least three occasions since the Intifada began the court has made attempts, albeit unsuccessful ones, to have private defense lawyers to represent the accused. 148 Yet having failed, it then went on to impose the death penalty after trials in which court-appointed defense counsel were given no time to prepare and presented hopelessly inadequate defenses.
Human Rights Watch knows of only two of the sixteen alleged informers tried since the Intifada began who were defended by lawyers in private practice.149 The family of Hussam al-‛Aslini appointed Salama Salama on the day of the trial in Bethlehem but the court refused the lawyer's request for a 48-hour adjournment to prepare the defense.150 Nevertheless, Salama called witnesses to challenge the prosecution case and after the trial's conclusion petitioned President Arafat to review the conviction. As mentioned above, this is the only case in which the court's verdict has been suspended pending a review.
Palestinian human rights organizations will not send lawyers to appear in the State Security Court because they consider it so flawed that it should be abolished. The Palestinian Bar Association takes no position on whether or not its members should act as defense counsel in the State Security Court.151 But it is very difficult to find a private lawyer prepared to face public wrath and defend an alleged collaborator. A private lawyer retained by the accused Sheikh Munzir al-Hefnawi in Nablus withdrew when he found out the charges. The court appointed a police officer as defense counsel who was given twenty-four hours to prepare and met once with his client. A lawyer defending three accused in the Thabet Thabet case withdrew after his challenge to the constitutionality of the State Security Court was predictably rejected by the judges. On the spot, the judges instructed the police officer who was defending the other accused to represent all the accused, but allowed no adjournment so that the officer could have time to prepare.
Fateh Sorour, chief judge of the State Security Court, told Human Rights Watch that lawyers coming to the court are scared. This was confirmed by a lawyer, an official of the State Security Court, who told Human Rights Watch:
The lawyers entering the [State Security] courts are scared like rabbits. They fear that people will consider they are not nationalistic. They fear the same [if representing an alleged collaborator].152
In most cases, it appears that court-appointed lawyers say little on behalf of their client, fail to present a proper defense if the accused pleads not guilty or denies some alleged facts, and often use language showing they consider their client to be guilty. Colonel Hassan Mussalam (59) was convicted and sentenced to death on February 11, 2001 in a military court in Hebron for allegedly being an informant for Israeli security. He admitted only to meeting Israeli security agents twice in 1994, receiving a total of NIS 1,800 (about U.S. $450), and identifying an activist in one photograph, before breaking off all contact. The court-appointed defense counsel reportedly did not cross-examine or ask a single question of the key prosecution witness, who was himself a confessed collaborator.153 In the Bethlehem trial (see above) the police officer defending three accused asked the court to show the accused mercy for becoming entangled with Israeli security-yet the three had denied all the charges.154
In many cases families see little point in hiring a lawyer, as they doubt it will change the outcome of the case. Even if a family is able, and can afford, to appoint a private lawyer, there is usually inadequate time to prepare a defense. Little advance notice of a trial is given-usually no more than the day before the court convenes. The son of Col. Mussalam, referred to above, reportedly recounted how:
One Saturday morning, I heard by chance from a neighbor that my father's trial would be held that day ... I rushed over there and discovered that there really was a hearing about my father's case.155
Some court-appointed defense lawyers have tried to challenge evidence and present elements of a defense, but they have usually been blocked by the judges' procedural rulings. Requests for adjournments to prepare cases, for example, are routinely rejected, and lawyers often have to defend their client hours or minutes after taking on the case. Victims, families, and lawyers usually do not know the specific charges before the trial, in violation of the accused's right "to be informed promptly and in detail...of the nature and cause of the charge against him."156 As discussed earlier, families may only be told vaguely that there are "security concerns" or that their relative is a "collaborator." Lawyers also report that it is difficult to obtain copies of documents such as charge sheets and witness statements.
The Case of ‛Alam Bani ‛Odeh
Violation of the Right to Appeal to Higher Tribunal
Summary justice is reprehensible under any circumstances, but especially where the consequence is the death penalty or life imprisonment. International standards emphasize that the death penalty may be imposed "only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts."159 The alleged informants tried by the State Security Court may or may not have committed the offenses of which they were charged. Despite some welcome attempts to improve court procedure in a few cases, the failure to respect most of the fair trial rights of the accused makes the verdicts unreliable and deeply flawed.
123 The presidential decree of February 7, 1995, creating the Higher State Security Court, is based on the Gaza Constitution of 1962, which authorized the Egyptian military governor to create military courts to try crimes against internal and external security. The presidential decree says the court shall be competent to try "crimes against both internal and external security," especially crimes set out in (Egyptian) Order No. 555 of 1964 which sets out a number of security crimes and their punishments including the death penalty.
124 The chairman of the Palestinian Bar Association told Human Rights Watch that the State Security Court was "an attack on the independence of the judiciary." He expressed the view that it should be abolished, though concentrated in his recommendations on how to improve its procedures if it is not abolished, including: abolishing the special state security attorney general; using only civilian judges; following the court procedures of the civil courts; and only referring special cases to the State Security Court.
127 Two trials are known: (i) Fawzi Muhammad Sawalha, an officer of Force-17, was sentenced to death (later commuted to life imprisonment) by a military court in Nablus on August 12, 1997 for terrorizing, abducting, and ill-treating local civilians, allegedly on the orders of Israeli security. Three other defendants (Khaldun `Uthamneh, Taher Jamlan and Naser Hamadneh) were tried with him and were sentenced to terms of imprisonment. The trial fell short of international standards for fair trial and the confession of the first defendant was reportedly extracted under torture. See Amnesty International, Five Years After..., p. 36; (ii) On May 21, 2000, the military court in Gaza tried four civilians, members of the Hammad family (who as civilians should not have been tried in a military court), in relation to the death of Yehya ‛Ayyash, a Hamas activist. Kamal Hammad and Hussam Hammad were sentenced to death in absentia. ‛Usama Hammad was released having already served three years and Karima Hammad was declared not responsible for her actions.
136 The control by the executive was underlined when Colonel Sameh Nasser refused to accept his appointement as a judge of the State Security Court in April 1995. He was arrested and detained by the security forces for three days until he eventually accepted.
137 For example, in May 2001 in the Gaza Strip, five people, Corporal Ezz Eddin Jamil Salem Al-Arabeed (24), Lieutenant Salem Jamil Salam (29), Ramzil Jamil Salam al-Arabeed (39), Majdi Jamil Salem Al-Arabeed (36), and Samir Jamil Salem Al-Arabeed (29), were accused of murdering Nidal Nasser, a member of the MIS. The first defendant was sentenced to death, the second defendant to twelve years of imprisonment, the third defendant was acquitted, and the charges were dropped against the last two defendants.
143 The accused was convicted and sentenced to death after a trial lasting some eighty minutes. The accused admitted in court that the day before the killing that he gave Israeli security forces information about the movements of Salah Darwazeh.
144 Human Rights Watch interview, Ramallah, September 3, 2001. See also account of a trial observer who described the doctor as "confused," in Segev, "Condemned...," Ha'aretz, January 19, 2001, English Edition, pp. B5-6.
145 As mentioned earlier, General Tawfiq Tiwari, head of the GIS on the West Bank, admitted in an interview with Human Rights Watch on September 7, 2001 that Hussam al-‛Aslini had been beaten in detention when first arrested by police, but that this was before he was transferred to the GIS, by whom he was freshly interrogated.
146 Human Rights Watch interview with Salama Salama, defense lawyer for Hussam al-‛Aslini, Jerusalem, September 11, 2001, and see also Orla Geurin, "Collaborators Face Harsh Penalty," BBC News, March 20, 2001, from interview with minister of justice, http://news.bbc.co.uk/hi/English/world/middle_east/newsid_1231000/1231455.stm
147 Article 14(3)(b) of the ICCPR gives accused the right "to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing" and 14(3)(d) provides the right "... to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right...."
148 In the Thabet Thabet case (see above) the chief judge adjourned the first session because none of the accused were legally represented. He unsuccessfully asked the Palestinian Bar Association to appoint defense counsel. Similar requests to the Palestinian Bar Association were made in the ‛Alam Bani ‛Odeh trial (see below) and to the Palestinian Bar Association and a human rights organization in the Bethlehem trial (see above).
149 Apart from the Hussam al-‛Aslini case described here, a private lawyer defended Khaled al-‛Akkeh in his trial in Gaza in August 2001 (see Torture above). One other State Security Court case since the Intifada has also involved private defense lawyers, though this was not a collaborator case. The five members of the security forces accused in the killing of Istikhbarat officer Nidal Fawzi Nasser were represented by two lawyers, including the chairman of the Palestinian Bar Association. One defense lawyer in the trial of ‛Alam Bani ‛Odeh in Nablus was an employee of the Ministry of Interior.
154 A trial observer was reported to have written that the police officer "sp[oke] as though his clients had confessed to the charges rather than denying them." See Segev, "Condemned...," Ha'aretz, p. B6.
157 "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law," Article 14(5), International Covenant on Civil and Political Rights.